The Issue Whether Petitioners received salary overpayments from the Agency for Persons with Disabilities.
Findings Of Fact At all times material hereto, Petitioners Ileana Toledo, Norma Pedraza, and Lil Guerrero have been career service employees of Respondent. The Department of Management Services (“DMS”) has a classification and pay system that is used by Respondent, and DMS is responsible for designating employment positions within Respondent. A position is either included for overtime pay or excluded from overtime pay. At issue is whether Petitioners erroneously received monetary compensation for overtime hours worked after their position was reclassified from an included career service position to an excluded career service position. Prior to March 28, 2013, Petitioners held the position of Human Services Counselor III, which was designated by DMS as an included career service position. On March 26, 2013, Respondent proposed to reclassify Petitioners’ position from Human Services Counselor III to Human Service Program Analyst, which is designated by DMS as an excluded career service position. The proposed reclassification resulted from a reorganization of Respondent’s regional offices, and an effort by Respondent to standardize its functions, services, and types of positions in its regional offices. In a letter dated March 26, 2013, Petitioners were advised by Respondent’s Human Resources Director, Dale Sullivan, that if they accepted an offer to reclassify their position from Human Services Counselor III to Human Service Program Analyst, their “current status and salary will remain unchanged.” Notably, the March 26, 2013, letter makes no specific mention of overtime. On March 28, 2013, Petitioners accepted Respondent’s offer of employment to reclassify their position from Human Services Counselor III to Human Service Program Analyst. Typically, employees of Respondent who are appointed to new positions are placed in probationary status, as opposed to permanent status, and are required to review and execute new position descriptions. However, the reclassification of Petitioners’ position by Respondent was not typical. As part of the reclassification of Petitioners’ position to Human Service Program Analyst, Respondent provided Petitioners with a new position description. However, Petitioners’ job duties, salaries, and permanent status remained the same as they had been in their prior position of Human Services Counselor III. Petitioners read and acknowledged their receipt of the new position description on March 28, 2013. On the first page of the position description, there is a heading titled “Position Attributes”. Under this heading, the term “Overtime” is shown, followed by two boxes, “Yes” and “No.” The “No” box is marked, indicating that Petitioners are not eligible to work overtime hours. The position description further indicates that Petitioners would be career service employees. However, the position description does not specifically include the terms included or excluded. Prior to the reclassification, Petitioners were paid bi-weekly based on an 80-hour pay period. If they worked more than 80 hours in a pay period, they received additional monetary compensation for their overtime hours. Payment for Petitioners’ regular and overtime work hours was based on employee timesheets submitted to the People First leave and payroll system. After the reclassification of their position, Petitioners continued to work overtime in excess of their bi-weekly contractual hours, despite the prohibition in the position description. Petitioners were required to obtain approval by their supervisors before being allowed to work overtime. Petitioners’ overtime was approved by their supervisors after the reclassification despite the prohibition on working overtime hours as indicated in the position description. During the pay periods of March 29-April 11, 2013; April 26-May 9, 2013; and May 10-June 23, 2013, Petitioner Ileana Toledo worked a total of 28 hours of overtime, and received monetary compensation in the amount of $464.63 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Norma Pedraza worked a total of 32.25 hours of overtime, and received monetary compensation in the amount of $624.14 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Lil Guerrero worked a total of 25.50 hours of overtime, and received monetary compensation in the amount of $426.65 from Respondent for these overtime hours. Respondent’s payment of monetary compensation to Petitioners for the overtime hours worked after the reclassification of their position to Human Service Program Analyst occurred due to an administrative coding error, thereby resulting in the overpayment of monetary compensation to Petitioners by Respondent in the amounts the Respondent seeks to recover from Petitioners. The administrative coding error occurred because of Respondent’s failure to note the change from included to excluded on the People First system following the reclassification of Petitioners’ position. The error occurred due to an honest mistake, and resulted in the overpayments at issue. Petitioners should not have received monetary compensation for their overtime hours in the Human Service Program Analyst position because a Human Service Program Analyst position is an excluded career service position. An excluded career service employee must earn and receive regular compensation leave credits for overtime work, but cannot receive monetary compensation for overtime work. On the other hand, included career service employees, such as those persons in Petitioners’ previous position of Human Services Counselor III, must receive monetary compensation for overtime hours worked, rather than regular compensatory leave credits. Neither Petitioners nor their supervisors were aware at the time that the overpayments were made that Petitioners could not receive monetary compensation for their overtime hours, but must instead receive regular compensatory leave credits. At hearing, Petitioners did not dispute the amounts and hours of overtime worked as set forth in paragraphs 12-14 above. In accordance with the Department of Management Services’ Bureau of Payroll Manual, the amount of salary overpaid, and the amount sought to be repaid, was calculated as set forth in paragraphs 12-14 above. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. Respondent followed those procedures in making the calculations relevant in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Agency for Persons with Disabilities determining that: 1) Petitioner Ileana Toledo was erroneously paid salary in the amount of $464.63; 2) Petitioner Norma Pedraza was erroneously paid salary in the amount of $624.13; 3) Petitioner Lil Guerrero was erroneously paid salary in the amount of $426.65; and 4) Petitioners are entitled to be compensated by Respondent through compensatory leave credits for the overtime hours worked as reflected in paragraphs 12-14 above. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 25th day of November, 2013.
The Issue Whether Petitioner was denied reasonable accommodation for his disability by Respondent in violation of the Pinellas County Code, Chapter 70 (“Chapter 70"). Whether Petitioner was wrongfully terminated from his position as a bus operator by Respondent because of his disability in violation of Chapter 70.
Findings Of Fact Petitioner, Richard Mastromarino, is a resident of St. Petersburg, Pinellas County, Florida. Respondent, Pinellas Suncoast Transit Authority, is publicly funded transit agency and is an employer under Pinellas County Code, Chapter 70. Petitioner was employed by Respondent from May 7, 1979, until June 10, 1997, as a bus operator. The position of bus operator requires a commercial driver’s license. After experiencing vision problems, Petitioner visited his primary physician in February 1997. The primary physician diagnosed Petitioner with diabetic retinopathy and referred him to an ophthalmologist. After his diagnosis, Petitioner informed his immediate supervisor of his condition and availability to do light-duty work, and requested a medical leave form to take with him to his appointment with the ophthalmologist. On March 3, 1997, Petitioner visited ophthalmologist Dr. William T. Cobb, who confirmed the diagnosis of diabetic retinopathy, a condition that causes the blood vessels in the retina of the eye to excrete liquid and blood, thus impairing vision. Dr. Cobb informed Petitioner that as a result of his diabetic retinopathy, his vision was insufficient to drive any vehicle, including PSTA buses. In a Progress Report dated March 3, 1997, Dr. Cobb indicated that Petitioner “works as a bus driver and his occupation is threatened by his ocular disease.” Dr. Cobb also completed Petitioner’s medical leave form entitled Certification of Health Care Provider. On the form, Dr. Cobb described Petitioner’s vision as “limited to less than required for driving a bus.” The form also inquired whether Petitioner was able to perform any one or more of the essential functions of his job. In response, Dr. Cobb indicated that Petitioner was “unable to see to drive.” With regard to the probable duration of Petitioner’s incapacity, Dr. Cobb stated that the duration was “unknown.” Petitioner was referred by Dr. Cobb to Dr. W. Sanderson Grizzard for laser surgery. The first of several surgeries were performed in May and June of 1997. During this time, Petitioner was extremely concerned about the outcome of the surgeries. He understood from his physicians that there was a chance that his visual limitations could worsen and that there was a possibility that he might lose his eyesight altogether. Therefore, his immediate goal was to obtain medical leave under the Family Medical Leave Act (“FMLA”) in order to have the surgeries performed. He also desired light-duty work in order to stay employed while he scheduled the surgeries. He was hoping that when his surgeries were complete, he could discuss his future with PSTA as far as which other jobs he could perform. He estimated that he would be able to discuss future work with PSTA in August or September of 1997. This information, however, was not conveyed to PSTA. Petitioner’s inquiries to his immediate supervisor regarding light-duty were referred to Gail Bilbrey, Benefits Specialist. Bilbrey administers a program instituted by Respondent, although not in writing, that assigns eligible employees on workers’ compensation leave to available temporary, part-time light-duty positions that accommodate their physical restrictions. In administering the program, Bilbrey reviews the medical documentation of an employee on workers’ compensation leave and determines if an existing position is vacant within one of several PSTA departments that the employee may be able to perform given the employee’s physical limitations. Because the positions available under this program are existing positions and are part of a bargaining unit of a labor union, light-duty assignments are not created for individual employees. Light- duty positions are extremely limited in number and are often not available for all employees injured on the job. The purpose of PSTA's light-duty program is to save costs of workers' compensation injuries by utilizing employees on workers' compensation leave, whom PSTA is required to pay, in vacant light-duty positions. Temporary light-duty positions, thus, are given to employees on workers' compensation by PSTA. The intent of the program is for the employee to occupy the position only on a temporary basis; thus, light-duty assignments are only granted to employees who are expected to return to work in their regular job. Since Petitioner was not on workers' compensation leave and was not expected to return to his bus-driving job, Petitioner was not eligible for a light-duty assignment. Even if Petitioner had qualified for light-duty, no light-duty positions were available at PSTA at the time of his request. Petitioner was informed of the lack of light-duty work during several conversations with Bilbrey. In response to his request, Bilbrey also prepared a memorandum dated April 23, 1997, indicating that no light-duty was available at that time. The main light-duty positions available at PSTA involved money-counting and ride surveying. Petitioner’s vision impairment prevented him from performing the functions of ride surveying, which includes observing passengers boarding and exiting PSTA buses at each bus stop and recording the results in writing. The money-counting light-duty position required the use of money-counting machines, checking bills, handling coins, and delivering/picking up tickets and money at Respondent’s remote terminals. Despite his vision limitations, Petitioner claims to have been aware of several full-time positions that he alleges he would have been able to perform in June 1997. First, Petitioner claims to have been able to perform the position of fueler/cleaner, which requires a valid Florida Class “B” Commercial Driver’s license, with passenger endorsement and air brakes, the ability to clean buses, and the ability to check coolant and oil levels. However, Petitioner had relinquished his commercial driver’s license in 1997, his physicians had stated he could not drive a bus, and, as observed by Bilbrey, his vision was insufficient to perform the job duty of checking coolant and oil levels. Two other positions became available at PSTA during the time in question which Petitioner now contends he would have been able to perform with adaptive equipment. First, the position of Customer Service Representative was posted by PSTA in early March 1997. This position involves selling tickets and passes, giving route and scheduling information to the public, and delivering supplies to three of Respondent’s remote locations. In 1997, maps and route schedules were not computerized and involved reading very small print. In addition, if Petitioner had qualified for and had been awarded the position, as the least senior Customer Service Representative, Petitioner likely would have been assigned as a “floater,” requiring Petitioner to be able to “float” between different remote terminals at different times to relieve other Customer Service Representatives. The shift of Customer Service Representatives begins at 6:00 a.m., prior to regular bus service. Given the fact that Petitioner was unable to read the fine print of the maps and schedules in a timely fashion and because transportation to deliver supplies, to float between terminals, and to report to work at 6:00 a.m. prior to bus service would have been a significant issue, Petitioner would not have been able to perform the job of Customer Service Representative. Also, in June 1997, the position of Clerk Risk Management became available. Petitioner had limited computer and clerical experience. Therefore, because this position requires extensive typing, computer work, and proofreading, Petitioner did not qualify for the position due to his limited vision and lack of computer experience. Petitioner was unable to perform these functions. After several surgeries, Petitioner's vision has stabilized but he is still legally blind by Social Security disability standards. Regardless of whether Petitioner would have been qualified, Petitioner did not apply for a request consideration for any of these positions or provide any documentation to Respondent indicating his ability to perform these jobs. Instead, in May 1997, Petitioner applied for long-term disability benefits. He completed the application in Bilbrey’s office with the aid of a magnifying glass. Attached to the application for long-term disability benefits was an Attending Physician’s Statement dated April 30, 1997, which was also provided to Respondent by Petitioner. On the form, Dr. Cobb indicated that the approximate date Petitioner would be able to resume any work was “indefinite” and that his prognosis for work was secondary to vision. Petitioner was granted and accepted long-term disability benefits. Pursuant to the long-term disability policy, Petitioner was found totally disabled and could not work. In addition, in April 1997, Petitioner requested an extended leave of absence beyond his FMLA leave that was due to expire in June 1997. However, when applying for the extended leave of absence, Petitioner was unable to specify a time frame in which he would be able to return to work. In fact, in a letter dated May 28, 1997, provided to Bilbrey on June 9, 1997, in support of Petitioner’s request for extended leave, Dr. Grizzard indicated that he “would expect [Petitioner] to not be able to work for at least 3 months.” Because Petitioner’s physicians were not able to provide a specific date when he could return to work, Petitioner’s request for extended leave was denied in accordance with Respondent’s policy. Thereafter, since Petitioner had exhausted all FMLA leave, was unable to perform the essential functions of his job as a bus operator, even with reasonable accommodations, and was unable to provide a definite date of return, Petitioner was terminated from his position as a bus operator on June 10, 1997, in accordance with PSTA policy. After his termination, Petitioner filed a grievance wherein he again requested an extended leave of absence until September 9, 1997, so that he could concentrate on his surgeries and to determine if he would be able to return to work at PSTA. A grievance hearing before Executive Director Roger Sweeney was held on June 30, 1997. At that hearing, Petitioner did not request light-duty assignment or reassignment to a new permanent position. Petitioner’s grievance was denied since Petitioner was unable to perform the duties for which he was hired, had been absent from employment with PSTA in excess of three months, had exhausted all FMLA leave, and was unable to provide a definite date of return. Following the grievance hearing, Petitioner was referred by the Division of Blind Services to Abilities of Florida for vocational rehabilitation training in January 1998. An assessment of his abilities indicated that Petitioner had limited keyboarding, computer, and clerical experience and was unable to score high enough on the 10-key calculator test to qualify for clerical training. Approximately three years after his termination, Petitioner also requested an evaluation to determine whether he could count money. In an informal test, Petitioner counted $55 in petty cash. However, no vocational report was ever provided to PSTA by Petitioner. The evidence fails to prove that Respondent’s employment decisions toward Petitioner were based upon or influenced by his disability.
Recommendation Based on the foregoing, It is RECOMMENDED that Petitioner’s Charge of Discrimination be dismissed with prejudice. DONE AND ENTERED this 9th day of April, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 2002. COPIES FURNISHED: Craig L. Berman, Esquire Berman Law Firm, P. A. 360 Central Avenue Suite 1260 St. Petersburg, Florida 33701 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Stephanie N. Rugg City of St. Petersburg 175 Fifth Street, North St. Petersburg, Florida 33701 Alan S. Zimmet, Esquire Zimmet, Unice, Salzman & Feldman, P.A. Two Prestige Place 2650 McCormick Drive, Suite 100 Clearwater, Florida 33759
Findings Of Fact The employee herein, the Petitioner, is employed by DEP as a park ranger. DEP is an agency of the State of Florida. The Petitioner failed to report for work after June 10, 1995. He apparently had some health problem or complaint and was on sick leave for a time. October of 1995 was the first month that he was on leave without pay. He was on leave without pay when he was terminated, which occurred on November 27, 1995. The Petitioner was not receiving workers compensation benefits between his last day of work on June 10, 1995 and the termination date of November 27, 1995. His monthly rate of pay was $1,627.23. He was paid $1,627.62 in gross wages for 176 hours on November 30, 1995. He received $1,319.18 in net wages for November of 1995. The Petitioner was entitled to $71.74 in wages for 10.75 hours for November of 1995. DEP calculated the amount of overpayment by offsetting the wages issued to him in November of 1995 by the amount he was actually entitled to receive for that month for the 10.75 hours. Thereafter, on December 12, 1995, DEP notified the Petitioner, by certified mail, return receipt requested, that he had been overpaid $1,247.44 in net wages for November of 1995. That return receipt reflected that the Petitioner received that letter on December 15, 1995. The Petitioner failed to refund the money to DEP during the 1995 tax year and as yet, has still not refunded the money. Because the money was not refunded during the 1995 tax year, the Petitioner also owes DEP an additional $163.87, which was withheld for taxes on the payment or overpayment in question. Thus, DEP overpaid the Petitioner a total of $1,411.31 in wages for November of 1995.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that the Respondent, Department of Environmental Protection, enter a Final Order finding that the employee, the Petitioner, Eugene Breeze, owes $1,411.31 for a salary overpayment received by him in November of 1995. DONE AND ENTERED this 1st day of November, 1996, in Tallahassee, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1996. COPIES FURNISHED: Mr. Eugene Breeze 1110 Florida Avenue Lynn Haven, Florida 32444 Melease Jackson, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The ultimate issue for determination is whether the Petitioner's discharge by the Respondent constituted discrimination on the basis of handicap within the meaning of the Florida Human Rights Act.
Findings Of Fact Having considered all of the evidence in the record, the Hearing Officer makes the following findings of fact: Petitioner was hired as a Mechanic II (Electrician) by Respondent on January 25, 1982 in the Plant Engineering Department. The term "Mechanic II" denoted Petitioner's pay grade. The term "Electrician" designated Petitioner's speciality. Petitioner's pay grade was changed to Electrician and the Mechanic II pay grade was eliminated by Respondent for all such employees on or about November 16, 1983. Petitioner's duties as an Electrician included ladder work, running conduit and wire, repairing laundry and laboratory equipment and appliances, changing ballasts, and repairing electrical beds and nurse-call equipment. Petitioner performed all of the duties of an electrician, including ladder work until approximately November 27, 1985. Three months after he was employed in 1982, Petitioner injured his back while repairing electrical beds. Repairing electrical beds required much bending and stooping. Petitioner filed for Worker's Compensation benefits for the injury he sustained in repairing electrical beds. Petitioner suffered an off-the-job injury in 1983. Respondent permitted Petitioner to go on medical leave for two months. Petitioner again injured his back while working at the Hospital on or about November 27, 1985. Due to his injury, Petitioner was on leave of absence from November 30, 1985, through December 11, 1985. Petitioner returned to work but again went on leave of absence from January 9, 1986, through February 17, 1986. Petitioner returned to work subject to a "light duty" restriction imposed by his physician. On or about June 10, 1986, Petitioner's physician released him for full duty subject to a 15 pound restriction on any lifting. In September, 1986, Petitioner's physician indicated that it was "probably best" for Petitioner to work only 4 hours per day. The Respondent again allowed Petitioner to work 4 hours per day even though he occupied a full-time, 8 hour per day position. In early October, 1986, Petitioner was released by his physician to perform full duty work, even though Petitioner was restricted to half days. Frank Kleese, Petitioner's foreman, asked Petitioner to investigate a problem with an overhead light. Petitioner refused Kleese's directive and stated that, even though he had been released for full duty work, he would not climb a ladder unless his doctor approved it. Petitioner argued with Kleese and used "strong language". Petitioner became belligerent. Petitioner received reprimands for insubordination. When Petitioner refused Kleese's second request to do ladder work, Petitioner received a reprimand for refusing to do the job assigned to him. Both reprimands were discussed with Petitioner. Petitioner later presented a doctor's note stating he could "return to full active duty," but could work only half days with no ladder work. As a result of Petitioner's half day schedule, other electricians were required to do more work. The department as a whole fell behind in its work. Furthermore, light duty work was not always available for Petitioner. While working half days in late 1986, Petitioner was late to work on three occasions. Petitioner's reason for being late, as explained to Frank Kleese, his foreman, was that Petitioner's injury made it difficult for him to get out of bed in the morning. In November, 1986, Clark, Kleese, and Kunz met with Petitioner and advised him that he could not remain on half days indefinitely. Petitioner was advised that unless his condition was found to have improved by his upcoming doctor's appointment on December 1, 1986, he would be placed on medical leave. On December 1, 1986, Petitioner visited his physician, Dr. Richard D. Strain, Jr. Dr. Strain stated that there was no reason to think that Petitioner's condition would change quickly. Dr. Strain was going to send Petitioner home and put him on physician therapy (i.e., not allow him to work at all). Petitioner asked Dr. Strain if he could work half days, and Dr. Strain agreed. Kleese, Kunz, and Clark met with Petitioner and informed him that he would be placed on medical leave as a result of the Petitioner's medical condition. Continuation of his half-day status without any foreseeable cutoff date was not acceptable to the Respondent. On December 4, 1986, Respondent Benefits Supervisor Ralph Rettig advised Dr. Strain that Petitioner had been placed on medical leave of absence because there were no part-time positions available in Petitioner's department. Rettig requested Dr. Strain to advise him as to whether Petitioner's condition was the result of his injury at work and whether Petitioner would ever improve to the level where he could work more than half day duty. Dr. Strain responded to Mr. Rettig in a letter dated December 22, 1986, which indicated that Petitioner's condition was partially caused by degenerative changes. Dr. Strain further stated: Mr. Cabany tells me he is unable to work more than a half day, and I think that is a reasonable thing for him to do. Certainly, a man of his elderly years with the degenerative changes that he has, with super imposed trauma, that would be a good way to go. Petitioner went on medical leave beginning December 17, 1986. Prior to the beginning of his leave, Petitioner failed to fill out the leave of absence request form. When this came to Rettig's attention, Rettig requested that Vernon Clark send Petitioner the form. Clark wrote to Petitioner and informed him that he must fill out the leave of absence request form Clark had enclosed. Clark further informed Petitioner that he would have to request renewal of his leave when it expired in mid-January, 1987, in accordance with Respondent policies. During a telephone conversation several days prior to the expiration of Petitioner's leave, Clark reminded Petitioner that he still had not sent in the original request form for the leave he was then under. Clark also reminded Petitioner that, if he wished to extend his leave, Petitioner would have to submit a written request for extension. Petitioner eventually sent in the signed request form for the leave of absence which he was then under. The signed form stated: "If I do not request an extension of my Leave prior to expiration . . . my employment at Memorial Respondent will be terminated. . . ." Petitioner never submitted a request for an extension of his leave, and Petitioner was terminated. In February, 1987, Ralph Rettig became aware of a part-time porter position in the Respondent's Dietary Department. Mr. Rettig contacted Petitioner and asked him to meet with Joseph Marino, Administrative Director of Food and Nutrition Services, with regard to a job in the Dietary Department. Marino offered Petitioner a porter position which required only half days and involved no bending or lifting of heavy objects. Marino explained the duties and responsibilities of the position to Petitioner and showed him the work area. Petitioner refused the position because he felt it was "beneath his dignity". Petitioner said virtually the same thing to Rettig. Hospital Benefits Supervisor Rettig, a quadriplegic, was involved throughout in dealing with Petitioner's medical situation. Rettig testified that he has never witnessed discrimination by the Respondent based upon handicap and felt that the Respondent reasonably accommodated Petitioner's back problem. Eighty percent of an Electrician's work at the Respondent involved the use of a ladder. Petitioner could not do ladder work. Petitioner also could not work on ceilings or do much bending or lifting. Petitioner cannot work at all now, still has pain, and has not worked since leaving the Respondent's employ. Petitioner did not know of any available half-day jobs he could have performed at the Hospital other than the porter position that was offered to Petitioner by Mr. Marino. Prior to his 1985 injury, Petitioner had repeatedly requested to work part time as an Electrician because his wife had arthritis and he needed to care for her. Petitioner was consistently turned down because no such part-time position existed in his department. During his employment with Respondent, a few half-day positions existed throughout the Hospital as PBX Operators, Cashiers, and Porters. No part-time Electrician positions in the Plant Engineering Department where Petitioner was employed were ever available. Petitioner occupied a full-time position even though he worked only part-time. Sandy McNeil, a former Electrician, is now a Systems Technician/Welder who works full days on a part-time basis. Mr. McNeil operates a lathe and works full weeks when needed. Petitioner is not a welder and could not perform the duties required of Mr. McNeil. Richmond Blatch is a painter who works a full week every other week. Petitioner is not a painter and could not perform Mr. Blatch's duties. Tom Nottage, another individual who had been working in the Engineering Department, obtained a courier position with the Hospital. For a brief period, Mr. Nottage worked 2 full days a week in the Engineering Department and 3 days week as a courier. Since mid-January, 1987, Mr. Nottage has worked full-time as a courier. His job requires driving over 25,000 miles per year, lifting mail tubs weighing between 20 and 50 pounds, often lifting heavier packages, and getting in and out of his car between 20 and 40 times per day. Petitioner could not perform the duties required of Mr. Nottage. A part-time position could not be created for an Electrician. Electricians are given jobs which frequently carry through from day to day. Permanently employing someone on a half-day, health-restricted basis presented scheduling and work load problems. Jobs that do not carry through from day to day are frequently comprised of so-called bench work. Some bench work requires an entire day to complete. There was not always a half-day's worth of bench work available. During his employment with the Respondent, Petitioner had been receiving Social Security pension benefits. In 1987, Petitioner would have been required to reimburse Social Security for a portion of his pension benefits if he earned more than $8,000,00. Half day employment would have afforded Petitioner the ability to earn the maximum allowed by Social Security. Because Petitioner refused to accept a job for which he was physically qualified, the worker's compensation benefits begun as a result of his injury on the job in 1982, were stopped. If Petitioner had accepted the porter position offered to him by Mr. Marino, his worker's compensation benefits would have compensated him for the wage loss resulting from the lower paying job. Petitioner's termination had no effect on the worker's compensation benefits Respondent was paying Petitioner. Respondent would have gained a financial benefit from retaining Petitioner as a part time Electrician because there would have been less of a wage loss to make up through worker's compensation benefits. Glen Mora and Luis Villanueva, two other Electricians, were injured while Petitioner was working half days. Both individuals were allowed to take medical leave, and return to work on light duty until they returned to full duty status. Both individuals in fact returned to full duty status. Petitioner received a merit pay check from Respondent in 1986 even though Petitioner had not achieved the requisite "fully proficient" rating in his evaluation. Vernon Clark, Director of Plant Engineering, intervened on behalf of Petitioner. Mr. Clark recommended that Petitioner receive the merit pay because Petitioner would have received a higher rating had it not been for Petitioner's injury.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Human Rights Commission issue a Final Order that Respondent is not guilty of discharging Petitioner in violation of the Human Rights Act. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of October, 1989. DANIEL MANRY 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 5th day of October, 1989. APPENDIX Petitioner submitted no proposed findings of fact. Respondent submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection NONE The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Included in Findings 1, 2 2-3 Rejected as irrelevant 4-9 Included in Findings 3-10 Included in Finding 35 Included in Finding 11 Included in Finding 25 Included in Finding 26 Included in Finding 31 15-17 Included in Findings 27-30 Included in Finding 17 Included in Finding 36 Included in Finding 32 21-28 Included in Findings 12-21 29 Included in Finding 22 30-31 Included in Findings 33-34 Included in Finding 22 Included in Findings 15, 17 34-35 Included in Findings 23, 24 COPIES FURNISHED: George Cabany 3905 Garfield Street Hollywood, Florida 33021 James S. Bramnick Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P. A. Hollywood Memorial Respondent Suite 3600 Southeast Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2338 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether or not Petitioner abandoned her position in accordance with the terms of Rule 22A-7.010(2) F.A.C.
Findings Of Fact At all times material, Petitioner was employed as an FSDB groundskeeper. Robert "Curly" Schopmann, the Grounds Supervisor and Petitioner's immediate supervisor, considered her to be "a very good employee" during her two years of employment prior to June 19, 1990. Petitioner's performance ratings confirmed Mr. Schopmann's assessment that Petitioner's quantity and quality of work was excellent during that period of time. Petitioner suffered an on-the-job accident on March 20, 1990 for which the employer and the Department of Insurance, Division of Risk Management accepted responsibility under Chapter 440 F.S., "The Florida Workers' Compensation Law." In June, 1990, Petitioner requested that the employer provide further medical treatment by an orthopedic physician, which further medical treatment was approved and provided. As a consequence thereof, Petitioner was off work from June 19 to mid-October 1990. Dr. Charles, Petitioner's authorized treating orthopedic physician, prepared a list of "job limitations" dated October 3, 1990 (Heilmann Exhibit 2). There is no evidence Petitioner was provided with a copy of this until after her termination. Sometime between October 1 and October 5, 1990, a rehabilitation consultant/specialist and registered nurse also prepared another, slightly more stringent list of limitations (DOE Exhibit B) which was not "verified" (approved) by Dr. Charles until October 29, 1990. Since Dr. Charles did not sign this second, more restrictive list until October 29, 1990, it must be assumed that neither Risk Management nor FSDB personnel saw it until after that date. Petitioner testified that she did not see it until after her termination. Effective October 13, 1990, Dr. Charles formally released Petitioner to do light work. The day before, Petitioner received notification concerning her release for light work from Risk Management (DOE Exhibit A). In that October 12, 1990 letter, Risk Management notified Petitioner that she was to either return to her old job and do light work while receiving temporary partial disability payments under the workers' compensation law or she was to make a good faith job search among other employers as also contemplated by that law. An abbreviated list of physical limitations based on Dr. Charles' October 3, 1990 list was also given by Risk Management to the Petitioner in its October 12, 1990 letter. By mutual agreement with the FSDB personnel office, Petitioner reported for light duty work at FSDB on Thursday, October 18, 1990. Mr. Schopmann first suggested that Petitioner work at her own speed outside but acceded to Petitioner's rejection of the use of a scooter to get around and do outdoors groundskeeping when she told him the scooter was "too bumpy" for her injured back. Either of Dr. Charles' job restrictions/physical limitations lists would have permitted Petitioner to work with hand-sized garden tools, a scooter, a riding mower, or a rolling seat for 80% of her day outside with only 20% of her day inside, provided she moved around and rested as needed with no lifting over 15 pounds and no squatting, crawling, bending, twisting, rotating, kneeling, or climbing inside or outside. When she said she could not ride the scooter, Mr. Schopmann told Petitioner to pot plants and trim the plants in the pots inside the greenhouse and that when she got tired, she should sit down and answer phones in the office before returning to pot more plants in the greenhouse. This instruction was in accord with the limitations for light work placed on Petitioner by her doctor in his October 3, 1990 list of limitations. It also was within the parameters of the abbreviated list relayed to Petitioner in Risk Management's letter of October 12 and those of the more stringent list the doctor later approved on October 29, 1990. At formal hearing, Petitioner admitted that she had understood that the supervisor's instructions included answering phones in the office and that she was otherwise assigned to the greenhouse. On Thursday, October 18 and Friday, October 19 and on October 22-24, she went to the greenhouse and office but did not restrict herself to just the jobs assigned by Mr. Schopmann. Instead, she tried to do all the usual work that is required of full-time, unimpaired greenhouse personnel. This additional work was considerably in excess of the limitations placed on her by her treating physician in either his October 3 or October 29 lists of limitations and was never directly assigned by her supervisor. The Petitioner asserted that she did this additional work because she was relying on the information provided in the October 12 Risk Management letter and in a telephone conversation she had had with Ms. Battle of FSDB's personnel office prior to October 18, and because she personally had never seen either of Dr. Charles' lists of limitations. On Wednesday, October 24, 1990, Petitioner left work at noon saying that she had a doctor's appointment, which she in fact did not have. Instead, she went home to rest. On Thursday, October 25, 1990, she called in sick and, as it turned out, she did not return to work after that date. The Petitioner testified that she did not return to work after October 24 because it was too painful for her to continue the work she had attempted. On October 26, 1990, a letter was sent from FSDB by Ms. Stephanie Battle notifying Petitioner that she was expected to come to work unless she had received a doctor's statement and that she was expected to return to work no later than Tuesday, October 30, 1990. Because October 26, 1990 was a Friday, it was Ms. Battle's intention that Petitioner would receive the letter on Saturday, October 27 or on Monday, October 29, and would then be able to obtain a doctor's certificate before the employer's October 30 deadline, if, in fact, Petitioner were eligible to receive a doctor's certificate at all. The October 26, 1990 letter sent by Ms. Battle provided in pertinent part: You are required to return to your job with the approved restrictions immediately. If you cannot return to work, you must provide this office with a letter from your attending physician saying why you are unable to perform your job, what the inclusive dates are that you cannot work and the approximate date of your return. At the present time you are in an unapproved leave without pay status. I expect to hear from you no later than Tuesday morning, October 30, 1990. On October 29, 1990, petitioner telephoned Stephanie Battle and informed her that she had received Ms. Battle's October 26, 1990 letter, that she could not work, but that Dr. Charles would not give her a "no work disability slip." At that time, Ms. Battle told Petitioner that she must return to work and asked if Petitioner had told her supervisor that she could not physically do the work assigned. Petitioner admitted to Ms. Battle that she had not yet discussed the problem with her supervisor. Later on October 29, Petitioner spoke on the telephone with Mr. Schopmann. Mr. Schopmann told Petitioner that she had to come back to work on October 30 or bring a doctor's certificate saying that she could not work at all. At that time, Petitioner indicated to Mr. Schopmann that she was aware that if she did not come back to work or provide some doctor's certificate she would lose her job. Whether Petitioner was consciously aware of the abandonment rule or merely thought she would be fired for not coming to work is not clear from the record. Petitioner asserted that she called Mr. Schopmann a second time on November 1, still seeking to retain her job; Mr. Schopmann denies that such a telephone call ever took place. It does not appear that Petitioner and Mr. Schopmann ever had a meeting of the minds that Petitioner was attempting to do more strenuous work than Mr. Schopmann thought he had assigned her to do, but at no time did Mr. Schopmann urge Petitioner to work harder. In her testimony, Petitioner blamed the employer far not making her fully aware of the limitations placed on her by her doctor. Petitioner also asserted that Ms. Battle had telephoned Dr. Charles on October 24, 1990 to see if the Petitioner's job assignments in the greenhouse and office exceeded his prescribed limitations for Petitioner and, further, that in so doing, Ms. Battle had misrepresented to the doctor the tasks that Petitioner was, in fact, doing and that Petitioner believed that it was due to Ms. Battle's misrepresentations that Dr. Charles would not give Petitioner a certificate of "no work." Ms. Battle confirmed that she had called Dr. Charles at some point and represented to him the type of light work that she understood from Mr. Schopmann that Petitioner was doing in the greenhouse and the office. However, at the time she telephoned Dr. Charles, Ms. Battle also did not know that Petitioner had physically attempted more than she had been assigned to do by Mr. Schopmann. At the time of her phone call, whenever it may have been, Dr. Charles told Ms. Battle [admissible hearsay pursuant to Section 120.58(1) F.S.] that Petitioner could do the light work described by her and assigned by Mr. Schopmann. Petitioner admitted that she did not consult her doctor in his office on October 24-25, that she never spoke personally with Dr. Charles during this period of time or tried to get a "no work certificate" from him personally prior to October 30, 1990, and that she dealt with him solely through his receptionist. However, the doctor's October 29, 1990 list of limitations and Petitioner's recitation of what the receptionist told her [admissible hearsay pursuant to Section 120.58(1) F.S.] supports a finding of fact that at all times material, Dr. Charles felt Petitioner could continue to do the light work actually assigned by Mr. Schopmann, a description of which had been related to him by Ms. Battle, and that the doctor also felt that the Petitioner could do all the light work which the doctor later listed on his October 29, 1990 list. Petitioner never presented a medical certificate to her employer. There was no evidence at formal hearing of whether or not the Petitioner had any accrued annual or sick leave that she could draw on, but it is clear that she never applied for authorized leave. The Petitioner never returned to work. On November 1, 1990, Mr. Schopmann notified the FSDB personnel office that Petitioner had not returned to work for three consecutive days, that he considered her to have abandoned her position, and that he recommended her dismissal on that basis. (DOE Exhibit D) In a letter dated November 2, 1990, Mr. Sam Visconti, FSDB Personnel Director, notified Petitioner that she was deemed to have abandoned her position due to her absence on October 29, 30, 31, and November 1 (sic, see Findings of Fact 12- 13), and that she was dismissed based on Rule 22A-7.010(2)(a), F.A.C. That letter reads in pertinent part: You failed to report or call in to work for four (4) consecutive work days on October 29, 30, 31, and November 1, 1990. In accordance with Chapter 22A-7.010(2), of the Florida Administrative Code, State Personnel Rules and Regulations, you have abandoned your position. Abandonment of position is considered and treated as a resignation from your job. Your resignation is effective 12:01 a.m., November 2, 1990. Petitioner had been on unauthorized leave without pay since October 24, 1990. However, due to the terms of Ms. Battle's October 26, 1990 letter, the only three days which could be legitimately counted against Petitioner under the abandonment rule were October 30 and 31, and November 1, 1990. Petitioner is angry about the on-the-job accident and how it occurred. She testified that as of the date of formal hearing she continues to see Dr. Charles professionally and that she would not do so if she were not in pain and really injured, but she produced no medical evidence that she was physically unable to report for work at all on October 30 and 31, and on November 1, 1990 or that she was unable on those dates to do the jobs contained in Dr. Charles' October 29, 1990 list of limitations.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a Final Order finding that Petitioner abandoned her position by unreasonable absence on October 30 and 31 and November 1, 1990. DONE and ENTERED this 30th day of April, 1991, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 30th day of April, 1991.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Overall organization. The City of Tarpon Springs has a mayor and four commissioners and operates under a city manager form of government. Neither the commissioners nor the mayor play an active role in the day to day operation of the City. The City Manager has the responsibility of operating the day to day affairs for the City. Collective bargaining relationships exist between the City and unions representing the Police and Fire Departments. The City Manager negotiates for the City in these relationships. Other than the Police and Fire Departments, there are approximately fifteen or sixteen departments with over 100 employees within the City. The actual number of employees varies seasonally, with the City employing more in the winter. At this time, the City employs approximately seventeen persons under the CETA program. The Public Works Department consists of ten or eleven separate departments, each of which, is headed by a foreman, and the Public Works Director has overall responsibility for the entire Department. His position is primarily one of assistant city manager. Four or five times a year, the City has supervisory meetings attended by the City Manager, the Public Works Director and the foremen of the various departments. Discussed at such meetings, are problems involving personnel, discipline and scheduling. Uniforms are available to most City employees on a voluntary basis. If, an employee chooses to wear a uniform, the City pays half the price of the uniform for the employee, with the exception of school crossing guards for whom the City furnishes uniforms and CETA employees for whom uniforms are not available. Uniforms worn by foremen have the word "foreman" written on them. Foremen. Each department under the Public Works Department is headed by a single foreman, with the exception of the Parks and Cemeteries Department which has two foremen. These various departments each have between three and eighteen employees, and include the departments of streets, sewer, sanitation, water distribution, building and maintenance, meters, water pollution control, and general maintenance. The City generally does not hire persons for the various departments without the recommendation or approval of the foreman. Under normal conditions, the foremen make the decision as to overtime work and the transfer of employees from one department to another. Written and oral evaluations and recommendations for wage increases are made by the foreman to the Public Works Director, which recommendations are normally approved. If an employee were caught drinking on the job, a foreman may fire the employee and then tell either the City Manager or Public Works Director about it later. The City then conducts an investigation into the matter to avoid possible future problems, but normally the decision of the foreman is approved. With a less offensive problem, such as absenteeism, the foreman issues a warning in writing. After the second warning, the foreman informs the Director or Manager that he is dismissing that employee and the City then terminates employment. Foremen make the decision as to time off for personal problems or emergencies and also grant approvals for vacation times. If there are complaints or grievances within a department, the foreman of that department normally takes care of it, very seldom do grievances come to the Public Works Director. An employee may be transferred from one department to another through the agreement of the two foremen involved. The primary duty of the various foremen is to direct the employees and supervise the activities within their respective departments. During shortages of personnel, foremen participate in the same type of work as their employees. Supervisory authority is one of the basis, along with longevity, for the pay differentials between foremen and other employees. Foremen assist in the formulation of policies and work schedules within their respective departments and are consulted with respect to the preparation of the budget. There are no supervisory-type personnel between the foremen and the Director of Public Works. Foremen handle grievances and would thus have a role in the administration of collective bargaining agreements. CETA employees. CETA employees work along with other City employees and the City is reimbursed for their salaries by the federal government. While they may have the same rate of pay as another person in their classification and do receive overtime pay, they do not receive raises nor do they have the fringe benefits which other employees have, such as hospitalization, uniforms, paid holidays, vacation, and sick leave. The CETA program presently extends through September 30, 1976, and such employees are hired until that time. If the City had a vacancy in a regular, permanent position, it would fill that position with a good CETA employee rather than going out and hiring another employee. Part-time employees. The City employs a number of part-time employees to work as school crossing guards, to police the beach, to do summer work with recreation, to work in the library and to do clerical and custodial work. Certain of these part-time employees are seasonal. In order to receive hospitalization benefits, an employee must work thirty or more hours per week. The three school crossing guards work 25 hours per week and receive uniforms fully paid for by the City. They are supervised by the Chief of Police. Other part-time employees fall under the supervision of the foreman or director for the department for which they work. Vacation and sick leave, as well as holiday pay, are prorated for part-time employees based upon the number of hours that they work. Their rate of pay is based upon the federal minimum wage though some regular part-time employees receive merit pay increases. In accordance with F.S. Section 447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. Respectfully submitted and entered this 4th day of August, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Curtis Mack Chairman Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, Florida Mr. Edward R. Draper 5400 West Waters Avenue, B-4 Tampa, Florida 33614 Mr. Allen M. Blake, Esquire Marlow, Mitzel, Ortmayer & Shofi 607 South Magnolia Avenue Tampa, Florida 33606
Findings Of Fact Acco Mechanical Contractors, Inc. is a subcontractor in the construction of a regional juvenile detection center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. The contract for the construction let by the Department of Health and Rehabilitative Services was in excess of $5,000.00 and pursuant to the provisions of Section 215.19(1)(b), Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of this project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco Mechanical Contractors, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between April 10, 1977 and October 16, 1977, Charles G. Mathis was employed by Acco Mechanical Contractors, Inc. as a plumber on this project and paid at the rate of $7.50 per regular time hour and $11.25 per overtime hour. Between October 16, 1977 and June 25, 1978, Mathis was employed on this project as a plumber and paid at the rate of $8.25 per regular time hour and $12.37 per overtime hour. The difference between the amount paid Petitioner for regular time hours worked and the prevailing wage is $2.50 per regular time hour during the period he was paid $7.50 an hour and $3.85 per hour for the period he was paid $11.25 for each overtime hour. The difference between the amount paid Petitioner for regular time hours and the prevailing wage was $1.75 for the period of time he was paid $8.25 for regular time hour and $2.73 for the period he was paid $12.37 for each overtime hour. The evidence conflicts concerning the number of hours the claimant worked. The Hearing Officer finds that the records of the Respondent Company, Exhibit 6, accurately reflects the number of regular and overtime hours the claimant worked on this project. Exhibit 6 reflects that the claimant worked 891.5 hours at a rate $7.50 an hour and 23 hours at the rate of $11.25 an hour, overtime. Exhibit 6 further reflects that the claimant worked 1,172 hours at a rate of $8.25 an hour and 76.5 hours at the rate of $12.37 per hour, overtime. The Petitioner was underpaid the amount of $2028.75 for regular time hours worked at the rate of $7.50 per hour; $2,051.00 for the hours worked at the rate of $8.25 an hour; $208.85 at the rate of $12.37 an hour; and underpaid $88.50 at the rate of $11.25 an hour, for a total of $4,577.10. Petitioner complied with the provisions of Section 215.19(3)(a)1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount paid for said hours. Said affidavit was filed within the time prescribed by statutes. Pursuant to Section 215.19(3)(b), Florida Statutes, the Department of Health and Rehabilitative Services is presently withholding $5,844.56 from Acco Mechanical Contractors, Inc. while awaiting the decision in this administrative proceeding.
Recommendation Based upon the foregoing Findings of Fact anus Conclusions of Law, the Hearing Officer would recommend that the Division of Labor enter its order directing the contracting authority to pay to the employee the sum of $4,577.10 and the remaining amount held by the contracting authority pursuant to this claim be paid to Acco Mechanical Contractors, Inc. DONE and ORDERED this 1st day of November 1978, Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Byrd Booth, Jr., Esquire Post Office Drawer 11089 Fort Lauderdale, Florida 33339 Charles G. Mathis 942 Montego Drive West Palm Beach, Florida 33406
Findings Of Fact Petitioner John A. Fritz was employed by Respondent Department of Transportation for approximately four years, working on a bridge crew from the Fort Lauderdale maintenance yard. On June 23, 1985, Petitioner was placed on workers' compensation disability leave; he returned to his normal duties on July 15, 1985. He was again placed on workers' compensation disability leave on July 26, 1985. During the week before Monday, December 16, 1985, Petitioner presented to Respondent a note from his treating physician stating that Petitioner was ready to return to work performing his regular duties on Monday, December 16, 1985. Petitioner did not report for work on Monday morning and did not contact Respondent regarding his failure to report to work until approximately lunch time when he telephoned Joseph Soucy, operations engineer. Petitioner advised Soucy that he was in jail, that he needed Soucy to contact Petitioner's credit union to obtain $200 bail money but that Soucy should contact the bail bondsman first. Soucy telephoned Petitioner's bail bondsman and found out that $200 was not what the bondsman needed; rather, the bondsman was requiring the deed to Petitioner's home as collateral. When Soucy telephoned the jail to relay the information to Petitioner, he was unable to speak to Petitioner directly but left a message explaining that the bail money would not be coming from the credit union since the bondsman required the deed to Petitioner's home. During the conversation that Petitioner had with Soucy, Soucy advised Petitioner that Petitioner was expected to report to work on the 16th of December and that if he did not do so, he would be considered absent without leave. Petitioner remained in jail until approximately December 23, 1985. He did not report for work on December 16, 17, or 18, 1985. After Petitioner's telephone call to Soucy on December 16, 1985, requesting Soucy's assistance in arranging his bail, Petitioner had no contact with the Department of Transportation until January 7, 1986, when he acknowledged receipt of the letter of termination sent to him by Respondent by certified mail, return receipt requested. On April 25, 1983, Petitioner signed an Acknowledgment of Receipt of the Florida Department of Transportation Employee Handbook. That handbook advises employees, on page 43, that an unauthorized leave of absence for three consecutive days will result in the Department considering the employee to have abandoned his position and to have resigned from the Career Service. Petitioner had previously requested leave, following all proper procedures, on previous occasions during the calendar year 1985. He did not, however, request leave nor was any authorized for December 16, 17, or 18, 1985. Further, Petitioner did not request leave nor was any leave authorized for the entire time period of December 16, 1985, through January 7, 1986, when Petitioner again contacted the Department of Transportation. On December 19, 1985, Respondent advised Petitioner that he was terminated from his employment with the Department of Transportation effective December 18, 1985, at 4:30 p.m. for abandonment of his position for failing to report for work since December 16, 1985, and for failing to advise his supervisor of his intention relative to his job.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that Petitioner abandoned his position with the Department of Transportation and resigned from the Career Service. DONE and RECOMMENDED this 9th day of June, 1986, at Tallahassee Florida. LINDA M. RIGOT 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 June, 1986. COPIES FURNISHED: Gilda A. Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Vernon L. Whittier Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 John A. Fritz 301 N.W. 51 Court Fort Lauderdale, Florida 33309 Augustus D. Aikens, General Counsel Department of Administration 530 Carlton Building Tallahassee Florida 32301
Findings Of Fact Acco Mechanical Contractors, Inc. was a subcontractor in the construction of the regional juvenile detention center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. The contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and pursuant to Section 215.19(1)(b), Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco Mechanical Contractors, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between January 7, 1978 and May 20, 1978 Richard Fisher was employed by Acco Mechanical Contractors; Inc. on this project as a plumber. During this time Fisher was paid at the rate of $6.50 per hour for regular time and $9.75 per hour for overtime. The difference between the amount paid the Petitioner for regular time hours worked and the prevailing wage is $3.57 and the difference between the amount paid the Petitioner for overtime and the prevailing wage is $5.35 per hour. The Respondent also controverts the number of hours asserted to have been worked by Fisher. The Respondent asserts in its hearing brief that Fisher worked 459 regular hours and 50 overtime hours. The claim presented by Fisher indicated that he worked 512 regular hours and 50 overtime hours. Exhibit 8 reflects that Fisher worked 459 regular hours and 55 overtime hours. Exhibit 8 further reflects that Fisher received $6.50 per hour for regular time worked and $9.75 per hour for overtime worked. The prevailing wage rate established by the division was $10.07 per hour. The difference between the wage paid Fisher for regular time hours and the prevailing wage was $3.57. The difference paid Fisher between time and a half computed on the prevailing wage and time and a half paid Fisher is $5.35 per hour. The amount Fisher was underpaid is equal to the sum of the regular hours worked (459) times $3.57 end the overtime hours worked (55) times $5.35, or a total of $1,941.13. The Petitioner has complied with the provisions of Section 215.19(3)(a)1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid for said hours. Said affidavit was filed within the time prescribed by statute. Pursuant to Section 215.19(3)(b), Florida Statutes, the Department of Health and Rehabilitative Service is presently withholding $2,322.35 from Acco Mechanical Contractors, Inc. while awaiting the decision in this administrative proceeding.
Conclusions Petitioner has established that he was hired and worked for Acco, Inc. as a plumber and that he was paid $6.50 per hour rather than the prevailing wage of $10.07 for plumbers on the project in question. Petitioner is entitled to the difference between what he was paid and the prevailing wage for the total number of hours worked by Petitioner at less than the prevailing wage. The Hearing Officer, in his Recommended Order, addressed the difference in pay between the regular time worked and overtime worked. However, Section 215.19, Florida Statutes, is void of any statutory language concerning overtime. The statute only requires that the employee be paid "not less than the prevailing wage." Absent a legislative directive in Section 215.19, Florida Statutes, concerning overtime pay, the employee is only entitled to the difference between what he was paid and what he should have been paid at the prevailing wage for the total number of hours worked at a rate less than the prevailing wage. Therefore, Petitioner is entitled to $1,638.63. Respondent's argument that the Division of Labor failed to properly adopt prevailing wage rates has been considered by the First District Court of Appeals of Florida in Vernon Neff et al. vs. Biltmore Construction Company, Inc., 362 So.2d 442, (1st DCA Fla. 1978) and State of Florida Department of Commerce, Division of Labor vs. Matthews Corporation, 358 So.2d 256 (1st DCA Fla. 1978). The Court, in both cases, upheld the process by which the wage rates are adopted. Respondent argues that additional insurance benefits should be included in the wage rates, but such benefits are not "wages". The amount paid by the employer to provide insurance benefits should not be included in Petitioner's wage nor deducted from the amount owed to the Petitioner based upon this claim. It is, therefore, hereby ORDERED and ADJUDGED that the contracting authority, the Department of Health and Rehabilitative Services, pay the Petitioner, from the amount it is withholding in this claim, the amount of $1,638.63, and that the remaining amount held by the contracting authority, pursuant to this claim, be paid to Acco, Inc. DONE and ORDERED this 19th day of December, 1978 at Tallahassee, Leon County, Florida. STEVEN H. CAMPORA, Director Division of Labor Florida Department of Labor and Employment Security Suite 200 - Ashley Building 1321 Executive Center Drive Tallahassee, Florida 32304 Telephone No.: (904) 488-7396 COPIES FURNISHED: DEWEY H. VARNER, JR., ESQUIRE Attorney for Petitioner 3003 South Congress Avenue Palm Springs, Florida 33461 L. BYRD BOOTH, JR., ESQUIRE Attorney for Respondent O'Neal and Booth, P.A. Post Office Drawer 11088 Fort Lauderdale, Florida 33339 LUTHER J. MOORE, Administrator of Prevailing Wage Division of Labor 1321 Executive Center Drive, East Tallahassee, Florida 32301 THOMAS A. KOVAL, ESQUIRE Florida Department of Labor and Employment Security 401 Collins Building Tallahassee, Florida 32304 STEPHEN F. DEAN, Hearing Officer Department of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the Division of Labor enter its order directing the contracting authority to pay to the employee the sum of $1,941.13 and the remaining amount held by the contracting authority pursuant to this claim be paid to Acco Mechanical Contractors, Inc. DONE and ORDERED this 1st day of November 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dewey H. Varner, Jr., Esquire Culp and Fisher 3003 South Congress Avenue Palm Springs, Florida 33461 Byrd Booth, Jr., Esquire Post Office Drawer 11089 Fort Lauderdale, Florida 33339 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF LABOR RICHARD E. FISHER, Petitioner, vs. CASE NO. 78-1283 ACCO, INC., Respondent. / FINAL ADMINISTRATIVE ORDER Upon due notice to all parties in the above-styled cause, an administrative hearing was held on September 15, 1978 in West Palm Beach, Florida before Stephen F. Dean, the assigned hearing officer. STATEMENT OF CLAIM: Petitioner, Richard E. Fisher, filed a claim against Respondent, Acco, Inc., alleging that he had been hired by Acco, Inc. in the capacity of a plumber and that Acco, Inc. had failed to pay him the prevailing wage for plumbers as required by Section 215.19, Florida Statutes. The question presented in this case is how many hours the Petitioner, Richard E. Fisher, worked, the wage paid the Petitioner, and what, if any, difference exists between the wage paid the Petitioner and the prevailing wage. FINDINGS OF FACT: Acco, Inc. was a subcontractor in the construction of the Regional Juvenile Detention Center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. The contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and, pursuant to Section 215.19, Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between January 7, 1978 and May 20, 1978, Richard E. Fisher was employed by Acco, Inc. on this project as a plumber. During this time, Fisher was paid at the rate of $6.50 per hour. The difference between the amount paid Petitioner and the prevailing wage is $3.57. The Petitioner has complied with the prOvisions of se6ion 215.19(3)(a) 1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid for said hours. This affidavit was timely filed. Exhibit No. 8, the Weekly Time Reports for Richard E. Fisher, establish that Fisher corked 459 hours at the rate of $6.50 and 55 hours at the rate of $9.75. The difference between what Petitioner was paid and what he should have been paid at the prevailing wage rate is equal to the sum of hours worked (459) times $3.57 or a total of $1,638.63. Pursuant to the statute, the Department of Health and Rehabilitative Services is withholding $2,322.35 from Acco, Inc. pending the outcome of this claim.
