The Issue Whether the Department may revoke and/or refuse to renew Mr. Moore's Certificate?
Findings Of Fact During 1982, 1983, 1984, part of 1985 and 1986, Mr. Moore acted as a farm labor contractor as those terms are defined in Section 450.28(1), Florida Statutes, and Rule 38B-4.02, Florida Administrative Code. Mr. Moore also acted as a crew leader as defined in Section 443.036(12), Florida Statutes, with a crew of approximately 16 to 20 farm workers. During 1982 through 1986 Mr. Moore failed to file quarterly unemployment compensation tax reports with the Department. When questioned by the Department about why he was not filing quarterly reports Mr. Moore would begin filing them. He would not continue filing them, however, and he paid no taxes due with the reports he filed. During 1982 through 1986 Mr. Moore failed to pay unemployment compensation taxes which totalled $6,831.27, including penalties, interest and filing fees, as of February 1, 1988. This amount will increase every month after January, 1988, that the debt is not paid because of the accrual of interest. By letter dated August 18, 1987, the Department gave Mr. Moore notice that it intended to revoke his Certificate. By letter dated December 16, 1987, the Department gave Mr. Moore notice that it intended to refuse to renew the Certificate. The Department gave Mr. Moore an opportunity to explain why he should be allowed to retain his Certificate. The Department also attempted to work with Mr. Moore to give him an opportunity to pay the delinquent taxes. At least two representatives of the Department have discussed the payment of delinquent taxes with Mr. Moore in the past. Mr. Moore would agree to make payments to the Department as a result of these discussions. For a while Mr. Moore would make payments. Within a short period of time after beginning payments, Mr. Moore would stop.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order revoking and refusing to renew Mr. Moore's Certificate. DONE and ENTERED this 22nd day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 22nd day of March, 1988. COPIES FURNISHED: MOSES E. WILLIAMS, ESQUIRE STATE OF FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY MONTGOMERY BUILDING, ROOM 117 2562 EXECUTIVE CENTER CIRCLE TALLAHASSEE, FLORIDA 32399-0658 ROBERT L. MOORE P. O. BOX 61 HASTINGS, FLORIDA 32045 ROD WILLIS, BUREAU CHIEF BUREAU OF AGRICULTURAL PROGRAMS P. O. BOX 1698 TALLAHASSEE, FLORIDA 32302-1698 HUGO MENENDEZ, SECRETARY 206 BERKELEY BUILDING 2590 EXECUTIVE CENTER CIRCLE, EAST TALLAHASSEE, FLORIDA 32399-2152 KENNETH HART GENERAL COUNSEL 131 MONTGOMERY BUILDING 2562 EXECUTIVE CENTER CIRCLE, EAST TALLAHASSEE, FLORIDA 32399-2152
Findings Of Fact John E. Livingston applied for energy assistance on November 16, 1983. From the income shown on his application, Petitioner would be eligible for $84 in benefits. On December 28, 1983, Respondent mailed a letter to Petitioner requesting he present additional evidence to verify the VA compensation shown on his application. Due to some mix-up in the mail, this letter was not delivered to the mailing address of Petitioner until February 28, 1983. The letter was mailed to the address given by Petitioner as his mailing address. This address is the church at which Petitioner is assistant pastor and to which he goes daily. By notice dated February 1, 1984, Petitioner was notified that his application for assistance was denied because he had failed to present the additional information requested within 10 working days as required by rule. Petitioner then submitted his request for hearing.
The Issue The issue presented for decision herein is whether or not the Petitioner, Margie Ann Sims, was unlawfully terminated (by Respondent), Niagara Lockport Industries, Inc., due to her age in violation of the Florida Human Rights Act of 1977, Section 760.10, Florida Statutes (1983).
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Petitioner is forty eight (48) years old. She commenced work for Respondent, Niagara Wires, a subsidiary of Niagara Lockport Industries, Inc., located in Quincy, Florida during 1965 as an Accounts Payable Clerk. Petitioner was terminated on August 5, 1983, as a result of a reduction in staff and unsatisfactory work performance.1 During Petitioner's job tenure, she held various accounting and secretarial positions. Petitioner's initial duties were that of an accounting clerk and she later progressed to Assistant Chief Accountant. She later served as Corporate Bookkeeper and Secretary. Throughout her employment, her job duties were very broad and encompassed many areas of responsibility including overseeing accounts receivable, billings, payroll, bank statements, journal entries, wire transfers and financial statements. During 1975, Respondent's corporate office was moved to Quincy, Florida and Petitioner handled accounting and secretarial duties for the corporate office, dealt with banks making fund transfers, loan balancing and note arrangements; managed financial consolidation of Respondent's eight companies on a quarterly basis; maintained all pension plan records for Respondent's fourteen pension plans which included calculations of pension benefits, submission of wages and credited service to actuaries in preparation of various pension reports. Petitioner's other duties involved maintenance of company minute books, typing, submission and maintenance of files for all letters of credit issued; keeping patent and trademark files and assisted with telecopy, switchboard and TWX. (Petitioner's Exhibit 2). During 1976, Petitioner worked directly for Respondent's corporate secretary/treasurer, Robert Worrall. The assignment occurred as a result of a recommendation by Respondent's manufacturing manager, Don Anderson. Petitioner was considered the best of the three employees available to work for Worrall. Thereafter, several changes were made in Respondent's corporate makeup including the addition of the Lockport Felt Division in 1977. As a result, additional employees were placed in the accounting department and Petitioner's duties became more secretarial and clerical in nature than accounting. This situation remained unchanged until Petitioner's termination in 1983. Although Petitioner worked directly for Worrall, she was also expected to perform secretarial and clerical work for others in the accounting department, specifically including Harry Kurtz, Vice-President of Finance, Bruce Kennedy, Controller and Hank Burnett, Corporate Administrative Manager. While Petitioner's primary responsibility was to complete Worrall's work, she was also expected to perform work for other accountants and fiscal employees in the accounting department as she was the only trained employee in the accounting department available for typing duties. (TR 35, 106, 133-134, 117-119, 138, 142 and 153). Respondent has not maintained a formal policy concerning employee discipline or warnings for salaried employees, as Petitioner. (Testimony of Cairns and Worrall, TR 19, 46-47, 60 and 77). Commencing in 1980, Worrall became unhappy with Petitioner's work performance. This unhappiness took the form of counseling with Petitioner during year-end annual reviews and included the following deficiencies: "away from her work station when needed; too much time spent socializing with others; unwilling to work; pushing work back on Worrall; untimeliness and failing to timely complete work as assigned." (TR 85, 110, 116- 117). Like Worrall, other employees in the accounting department for whom Petitioner worked were dissatisfied with her performance during the years 1980-1983. Harry Kurtz, Vice- President of Finance, experienced problems with Petitioner's work quality including errors in typing and formatting, misspelled words and inaccurate numbers to the point where he did not want her (Petitioner) to perform his (Kurtz) work. He was thus forced to seek assistance from persons outside the accounting department, including Pat Simmons who replaced Petitioner, to perform his work. Kurtz related these problems to Worrall. (TR 128, 129-133, 131 and 136). Bruce Kennedy, Controller, experienced similar problems with Petitioner's work quality. He noted Petitioner frequently misspelled words and transposed numbers. Kennedy experienced problems concerning timeliness and the invalid excuses by Petitioner for failing to complete assigned work as scheduled. (TR 137-139). Based on Petitioner's poor work quality, Kennedy went outside the accounting department to get assistance in performing his clerical and secretarial duties. Kennedy informed Worrall of his dissatisfaction with Petitioner's work. Hank Burnett, Corporate Administrative Manager, also experienced problems with Petitioner's work quality in regards to accuracy and neatness. Burnett related an incident where Petitioner used so much "white-out" to make corrections that numbers on ledger sheets were not legible. Burnett also experienced problems with Petitioner in getting work returned timely. He also found it necessary to go outside the accounting_ department to solicit the assistance of Pat Simmons to perform his work. Burnett related to Worrall his dissatisfaction with Petitioner's performance. (TR 128, 150). Linda Jaudzimas is presently employed with Niagara Wire Weaving Employees Credit Union. She has held that position since approximately May of 1980. During the years 1978 through May of 1980, Jaudzimas was employed as an accounting clerk in the corporate accounting office for Niagara Lockport Industries. During that time period, she worked directly with Petitioner and Worrall. Jaudzimas described Petitioner and Worrall as having a very good work relationship and that Worrall depended upon Petitioner a lot. However, since May of 1980, Jaudzimas had only limited contact with Petitioner The typical degree of contact would be only to "pick up reports; I would get information from pensions for time reporting periods." (TR 54 and 58). Don Anderson is presently employed as the Manufacturing Manager for Respondent. Anderson has been in Respondent's employ since 1971. From 1971 through January 1, 1974, Anderson was Respondent's Chief Accountant. Anderson had no direct knowledge concerning Petitioner's work performance since January of 1974. Anderson corroborated Cairns and Worrall's testimony that Respondent had no formal policy concerning disciplinary action taken against salaried employees, as Petitioner. (TR 60). Respondent conducted informal evaluations of salaried employees, including Petitioner, at the end of each year in conjunction with salary increases. During Petitioner's 1981 work performance evaluation, Worrall discussed his concerns with Petitioner including the fact that she spent too much time talking to other people; that he always had to look for her and she pushed work back on him. Petitioner's time away from her work station and her negative attitude toward the company's insurance program were items of discussion. (TR 17; 84-88). An entire list of Worrall's concerns respecting Petitioner's job performance were placed in her personnel file during the 1981 annual performance review. (Respondent's Exhibit 1). Petitioner recalls Worrall using that list during their meetings. (TR 36). Petitioner's performance did not improve during the following year and Worrall expressed the same concerns to her during her annual work performance review during 1982. (TR 115-116). Petitioner received "good" salary increases during the late 70's however, due to her poor performance from 1980-1982, Worrall recommended that she receive only the minimum cost of living increases for the years 1981, 1982 and 1983. In mid 1983, Respondent made a decision to reorganize its corporate offices by moving the sales office of Niagara Lockport from Quincy to Starkeville, Mississippi and by making a change in the research and development department. Pat Simmons, age 41, was secretary for the vice-present of research and development. Worrall was familiar with Ms. Simmons and her work having seen it first hand. Additionally, she was highly recommended by her then supervisors. Finally, she had performed work considered to be "high quality" by other employees in the accounting department including Kurtz, Kennedy and Burnett. When Simmons became available due to the reorganization, Worrall decided to replace Petitioner with Simmons. Petitioner's job had become primarily secretarial and clerical in nature and Worrall desired a competent executive secretary to replace her. (TR 88 90, 92, 94, 121-122, 127). Petitioner was 45 years of age at the time of her termination. (Respondent's Exhibit 3). Petitioner's duties were assumed by Simmons (95 percent) and Elaine Hall (5 percent) who was retained since she- possessed requisite accounting skills. Hall was able to complete the cash report in two hours, a job that had taken Petitioner the better part of a day to perform. (TR 86). As a result of the reorganization, two other employees, Loretta Hood (mid 30's) and Virginia Jeffcoat (mid 50's) were terminated. Petitioner was terminated in August, 1983 for the reasons that her performance was not satisfactory and a qualified person (Simmons) had become available due to Respondent's corporate reorganization and staff reduction. This was told to Petitioner at the time of her termination. (Respondent's Exhibit 2; TR 68, 93). Subsequent to her termination, Petitioner requested that Worrall write her a letter of recommendation. Worrall complied, however, Petitioner was not pleased and asked him to write a second one giving him an example to follow (Respondent's Exhibit 7). Petitioner wanted a "good" letter of recommendation so that she could easily obtain another job. In writing the recommendation, Worrall followed his policy of not commenting on negatives but merely set out the type of work Petitioner performed. Petitioner was still unsatisfied with Worrall's second letter and she therefore asked the Respondent's President, Malcolm Cairns, to write a letter of recommendation for her. As with Worrall, Petitioner participated in the drafting of the letter for Cairns by providing him with an example. (TR 22, 23 and 70). Cairns did not include anything negative in the letter so that it would be easier for Petitioner to obtain another job.
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 Petitioner was not terminated due to her age in violation of the Florida Human Rights Act of 1977, as amended. Section 760.10, Florida Statutes (1983) and that Petitioner's Petition for Relief be DISMISSED. DONE and ORDERED this 10th day of March, 1986, in Tallahassee, Florida. JAMES E. BRADWELL, 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 10th day of March, 1986. COPIES FURNISHED: Steven L. Seliger, Esquire 229 E. Washington Street Quincy, Florida 32351 Swift, Currie, NcGhee and Hiers, P.A., by Victor A. Cavanough 771 Spring Street, N.W. Post Office Box 54247 Atlanta, Georgia 30379-2401 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240/ Tallahassee, Florida 32303. Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
The Issue The issue is whether Respondent retaliated against Petitioner for signing an affidavit allegedly adverse to Respondent and for testifying on behalf of another employee in a proceeding filed under Section 760.10, Florida Statutes, in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact The Respondent is an employer as defined in the Florida Civil Rights Act of 1992, as amended. At all times material to this proceeding, Respondent employed Petitioner at Respondent's place of business located in Tallahassee, Florida. On March 29, 1990, Petitioner and Respondent's representative signed an Employment Agreement in which Petitioner agreed, inter alia, that during his employment, he would refrain from: (1) performing services for any person, during business hours, or at any other time, when said services were not authorized by Respondent; (2) soliciting work for or accepting any business from any customer of the company on behalf himself or for any others. On March 30, 1990, Petitioner and Respondent's representative signed a Sales Employee Compensation Plan in which Respondent agreed to pay Petitioner a starting salary of $1,200 per month as a guarantee against commission on sales for the first three months. Thereafter, Respondent's salary of $1,200 per month was to be a draw against commission on sales. Petitioner had to sell a minimum of $8,000 per month to earn his draw. Pursuant to the Sales Employee Compensation Plan, Petitioner earned a percent of sales, ranging from 10 percent to 20 percent, depending on the type of service Petitioner sold. He received commissions after the work was completed and the customer paid for the service. For example, Petitioner earned 15 percent of the annualized value of all pest control work, termite work, or special onetime service that he sold. He earned 20 percent of the initial month's service charge on all annual pest control service that he sold provided that he performed the start-up. Respondent paid Petitioner 20 percent of the total value of all real estate inspections (certification or clearance letter) that Petitioner performed. Under the Sales Employee Compensation Plan, Petitioner elected to receive 2.5 percent of monthly net commissionable sales, or $150, whichever was greater, as a gasoline allowance and to furnish his own transportation. However, Respondent's former branch manager gave Petitioner a gasoline credit card and told Petitioner to put the gasoline allowance in his pocket. The record indicates that the former branch manager acted beyond the scope of his authority in this regard. Upon employment, Respondent's former branch manager gave Petitioner a key to the office. Petitioner also received a pest control kit with which to perform the initial pest control treatment after selling a service contract. Respondent gave Petitioner a voice-pager so that he could stay in touch with the office and respond quickly to "office" leads. No other employee had the benefit of a voice-pager. In May of 1990, Petitioner successfully completed a training course in pest control. That September, he completed a course in termite control. On or about January 14, 1991, Petitioner became qualified to prepare wood infestation reports. At all times material to this proceeding, Petitioner was allowed to sell Respondent's services in north Florida and south Georgia. There were two kinds of sales leads. Petitioner could develop his own "creative" leads and sell anywhere within the sales territory of the Tallahassee branch office. Respondent's office manager logged all incoming "phone" or "office" leads and distributed them to the salesmen based on a geographic division of the sales territory. Petitioner lived in south Georgia; therefore, the office manager gave him all "office" leads originating in Georgia and on the east side of Tallahassee. Contrary to Petitioner's testimony, neither the office manager nor any other supervisor ever discriminated against Petitioner by withholding leads from him or by taking the best leads for themselves or another salesman. On or about September 16, 1991, Petitioner sold a customer a termite protection contract instead of a termite service contract on a very expensive home without Respondent's approval. This incident resulted in the preparation of a written Disciplinary Action Report (DAR) which states that Petitioner would be terminated if he could not follow Respondent's policy governing sales of termite protection and service contracts. Respondent's testimony that he signed this DAR under the threat of violence not credible. On February 26, 1992, Petitioner signed an affidavit relating to the employment relationship between Norm Arrington and Respondent. Mr. Arrington had been a salesman for Respondent and Petitioner's coworker. On March 9, 1992, Petitioner performed a wood-destroying organism inspection on residential property in Tallahassee, Florida. Petitioner issued a Form 1145 (October '89) Wood Destroying Organisms Inspection Report without identifying visible and accessible evidence of and damage caused by subterranean termites on the exterior of the structure. The Florida Department of Agriculture fined Petitioner $300 dollars for failing to report evidence of termite damage. Respondent paid this fine on Petitioner's behalf. Petitioner failed to report to work on September 12, 1992, for a sales meeting. He claimed he had an emergency but did not call in to explain his absence. Respondent wrote a DAR dated September 14, 1992, warning Petitioner that he would be suspended without pay for three days or terminated if he repeated this type of conduct. Petitioner presented contradictory record evidence concerning his reason for missing the sales meeting: (a) family medical emergency; and (b) mechanical problem with vehicle. Until October of 1992, Petitioner was successful in meeting or exceeding his minimum quota of $8,000 in sales revenue on an averaged monthly basis. One month he earned an award for being Respondent's top salesman statewide. However, in November of 1992, Petitioner's monthly sales revenues dropped below an acceptable level for an experienced salesman. Thereafter, Petitioner was in overdraw status, averaging between $3,000 and $4,000 per month in sales. Except for the month of February, 1993, Petitioner never again met his monthly minimum quota. At all times material to this proceeding, Petitioner's father owned a construction company. Respondent occasionally hired Petitioner's father to perform termite repair work. Respondent always hired outside contractors to do repair work for customers because of the liability involved and to prevent giving the impression that Terminix, Inc. was in the construction business. Petitioner was also trained as a carpenter. Petitioner admits that, during the months of his highest sales, he solicited and received "building" leads from Respondent's customers. As a result of these leads, Petitioner performed carpentry work, such as building cabinets or repairing damaged woodwork, for Respondent's customers. Petitioner's testimony that Respondent authorized this outside employment is not persuasive. In February of 1993, Tim Carey was Respondent's sales manager. He attended an out-of-town divisional sales meeting and returned to Tallahassee with motivational material to share with his staff. In the material was a poster which stated, "If you don't know where you going . . . you'll probably end up someplace else." Mr. Carey gave a copy of the poster to all salesmen including Petitioner sometime before Petitioner gave testimony adverse to Respondent. Petitioner's testimony that Mr. Carey gave the poster to Petitioner alone as a means of retaliation is not persuasive. On March 22, 1993, Petitioner testified by deposition on behalf of Norm Arrington in an unrelated age discrimination case. Around the end of March or the first of April, 1993, Tim Carey became Respondent's sales manager-in-charge. Respondent's Tallahassee branch did not have a branch manager at that time. Mr. Carey was responsible for all operations under the direct supervision of Ralph Potter, Respondent's regional manager. Mr. Carey officially became branch manager before Respondent terminated Petitioner on June 30, 1993. One of Mr. Carey's first acts as sales manager-in-charge was to change the locks to the office and the pesticide storage room. Petitioner signed a statement that he received a key to the office on March 31, 1993. However, Mr. Carey did not reissue an office key to Petitioner or any other sales representatives because they, unlike route technicians, did not work after normal business hours. Petitioner's testimony that his key was taken away as a discriminatory act is not persuasive. The undersigned also rejects Petitioner's testimony that the office was locked during office hours so that he was unable to use the phone. Mr. Carey also took Petitioner's company gasoline credit card because Petitioner was not entitled to use the card and receive a gasoline allowance too. This action was to enforce company policy, and not to retaliate against Petitioner. Soon after Mr. Carey became sales manager-in-charge, he and the office manager began receiving calls from customers wanting to know when Petitioner was going to finish their carpentry work. Sales meetings were interrupted at times by calls on Petitioner's voice-pager with inquiries about unfinished jobs. On one occasion, Petitioner came to the office at noon with paint on his hands which had been clean earlier that morning. On another occasion Mr. Carey could hear saws operating in the background when Petitioner called the office during business hours. Mr. Carey gave Petitioner repeated verbal warnings not to solicit outside employment or perform outside work for Respondent's customers. After each verbal reprimand, Petitioner would promise that he would stop and that it would not happen again. Mr. Carey eventually took Petitioner's voice-pager away and replaced it with a tone beeper like the ones used by other employees. The purpose of this action was to reduce overhead expenses and alleviate problems with Petitioner abusing the privilege of having a voice-pager. Petitioner could no longer receive direct messages relating to his construction business. Petitioner's testimony that Respondent discriminated against him by taking his voice-pager is contrary to more persuasive testimony. In April or May of 1993, Petitioner performed unauthorized work for one of Respondent's customers who sent one check to pay for a termite inspection and for Petitioner's carpentry work. In order to balance the office books, Respondent deposited the customer's check and wrote a separate company check made payable to Petitioner. Respondent again warned Petitioner not to perform unauthorized work for the company's customers. On May 17, 1993, Respondent prepared another DAR reprimanding Petitioner for two incidents. The first involved Petitioner's issuance of a clearance letter for Ms. Fortune's residence even though Petitioner had identified wood rot on the premises. Petitioner claimed he knew Ms. Fortune and issued the clearance letter based on her promise that she would repair the damage. A subsequent inspection revealed that the customer had not made the repairs. The second incident covered by the May 17, 1993, DAR involved one of Respondent's national relocation customers, Prudential Relocation. Petitioner prepared a wood destroying organism report for the customer without inspecting the inside of the structure. Respondent was responsible for repairing wood rot damage on the house. Petitioner violated Respondent's policy regardless of whether he wrote "exterior only" on the report. Neither party signed the May 17, 1993, DAR. However, Mr. Carey discussed both incidents with Petitioner and warned him that he would be suspended or discharged if: (a) Petitioner gave a clearance letter without inspecting the interior of the structure; and (b) Petitioner issued a clearance letter on a structure with water damage. On another occasion, Petitioner informed Mr. Carey that someone had stollen his pest control kit out of the back of his truck. Petitioner filed a police report on the missing pesticide kit. Several days later, a lady, who was not Respondent's customer, reported that Petitioner left the service equipment at her home after using it to treat her residence. Respondent recovered the missing equipment and did not return it to Petitioner. From that time on, a service technician performed Petitioner's initial pesticide treatments. Petitioner's testimony that Respondent took his pest control kit as a retaliatory act is rejected. Petitioner was not allowed to use the service equipment again because: (a) He left registered material in an unsupervised location; (b) He used the equipment to service a non-customer's property; and (c) He could schedule the start-ups for his new customers through the office. Petitioner's testimony that Respondent took the pest control equipment away and deliberately delayed the start-up service or failed to service on Petitioner's new accounts is not persuasive. On June 8, 1993, Ralph Potter and Tim Carey had a conference with Petitioner. The result of the meeting was a DAR signed by Mr. Potter and Mr. Carey. During the conference, the parties discussed: (a) Petitioner's poor performance for the first week of June, 1993, in which he created only $90 in revenues; (b) Petitioner's poor attitude; and (c) Petitioner's work ethic. Mr. Potter advised Petitioner that he would thereafter be expected to produce $2,500 per week in sales. Petitioner was counseled not to make negative comments, not to perform outside jobs on company time, and not to solicit from or do any work for Respondent's customers. The DAR listed suspension without pay or termination as future corrective action, if required. Petitioner refused to sign the June 8, 1993, DAR. Petitioner's attitude created problems as follows: (1) Mr. Carey had to ask Petitioner to leave a sales meeting because of his negative comments; (2) Petitioner disagreed with Mr. Carey over the proper way to complete required daily written sales reports; (3) Mr. Carey had to ask Petitioner to leave the office by 9:00 a.m. for his first appointment of the day; and (4) Petitioner resented not being allowed to answer the office phone even though company policy dictated that only the office manager, sales manager, or branch manager could answer the phone. Petitioner's testimony that Respondent offered him a job which would have reduced his income significantly is rejected as contrary to more persuasive evidence. Likewise, the undersigned rejects Petitioner's testimony that Ralph Potter physically attacked Petitioner in the men's room during an out-of-town meeting. Respondent discharged Petitioner on June 30, 1993. Petitioner's termination was the result of his unsatisfactory job performance and his failure to follow his supervisors' instructions. There is no persuasive competent substantial evidence to indicate that Respondent retaliated against Petitioner because he participated in a discrimination suit on behalf of a co-worker. To the contrary, Petitioner's employment record presents a history of problems with his supervisors. When Tim Carey became sales manager-in-charge, he and Ralph Potter warned Petitioner repeatedly that, regardless of his past working conditions, Petitioner would be expected to follow company policies. Petitioner's refusal to heed their advice and to increase his productivity resulted in job separation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that the Florida Commission on Human Relations enter a Final Order denying Petitioner's Petition for Relief. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of August, 1995. SUZANNE F. HOOD, Hearing Officer 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 21st day of August, 1995. APPENDIX 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. Petitioner's Proposed Findings of Fact Petitioner did not file Proposed Findings of Fact. Respondent's Proposed Findings of Fact 1-3 Accepted as modified in Findings of Fact 1-6. 4-5 Accepted as modified in Findings of Fact 9 & 14. Accepted as modified in Findings of Fact 11 & 18. Accepted in Findings of Fact 10, 13, 25, & 30. Accepted in Findings of Fact 12 except the administrative case involved only one incident. Accepted as modified in Findings of Fact 25-27. Accepted in Findings of Fact 10. Accepted in Findings of Fact 9 regarding leads. However, Petitioner never received a new key from Mr. Carey. Accepted in Findings of Fact 28 & 29. 13-14 Accepted but unnecessary to resolution of case. Accepted. See Findings of Fact 11, 33, & 34. Not a finding of fact. More of a conclusion of law. COPIES FURNISHED: Linda G. Miklowitz, Esquire Post Office Box 14922 Tallahassee, Florida 32317-4922 James M. Nicholas, Esquire Post Office Box 814 Melbourne, Florida 32902 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32303-4149 Dana Baird General Counsel 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32303-4149
Conclusions The complaint alleges, the Respondent admits and I find that it is a public employer within the meaning of Section 447.203(2) of the Act. The complaint alleges, the Respondent admits and I find that the Charging Party is now and has been at all times material herein, an employee organization within the meaning of Section 447.203(10) of the Act. The complaint alleges, the Respondent admits and I find that on or about December 2, 1976, the Public Employees Relations Commission issued a certification certifying the Charging Party as the exclusive bargaining representative for the public employees in the following unit: INCLUDED: Patrolmen, Patrolmen 1st class, Master Patrolmen, Evidence Technician, and Traffic Enforcement officer. EXCLUDED: All other employees of the Ocala Police Department including Sergeants who are shift commanders. The pleadings establish that during 1972, the Respondent, by and through its City Council, promulgated a City Ordinance (Chapter 13B of the Ocala Code) which regulates labor relations for its employees. Chapter 13B has remained in full force and effect and has never been approved by the Public Employees Relations Commission pursuant to Section 447.603, Florida Statutes (1975). Among other things, the ordinance provides that: "Solicitation for membership in a labor organization or the collection of dues therefor, or other internal affairs of a labor organization shall not be con- ducted by employees on working time, or on city premises. Labor organization literature, pamphlets, handbills and the like shall not be distributed in the work areas of the city premises at any time." (See Section 13B-8.) A summary review of the parties' joint exhibits demonstrate that Chapter 13B attempts to regulate nearly all aspects of a collective bargaining relationship. In PERC v. The City of Naples, 327 So.2d 41 (Fla. 2nd DCA 1976) the court determined that an entity may not assume jurisdiction of a public employee bargaining procedure until PERC has approved that procedure. In this case, no such approval has been granted by PERC as it is required pursuant to 447.603, Florida Statutes (1975). Further comparison of the provisions of Chapter 13B of the Ocala Code and Chapter 447, Florida Statutes, lends support to the conclusion that Respondent's employees' collective bargaining rights are not on a parity with those rights guaranteed them by Chapter 447, Florida Statutes. For example, 13B-1(c) of the ordinance defines "supervisor" and section 13B-1(b) defines "employee". Supervisors are excluded from the definition of employee and thereby from collective bargaining whereas Chapter 447 contains no definition of supervisor and the Commission consistently determines that supervisors are entitled to protections guaranteed by Chapter 447. See CWA and Hillsborough County Hospital and Welfare Board, case no. 8H- RC-752-0175, 2 FPER 46 (1976); Hillsborough County PBA and Florida State Lodge, FOP and City of Tampa, 2 FPER 72 (1976). Additional distinctions are found respecting the definition of confidential employees and the determination by despondent in its code of "bargainable" subjects. It was noted that Respondent does not consider itself required to negotiate with respect to wages, hours and terms and conditions of employment. See the May Department Stores Co., 191 NLRB 928 (1972). While Chapter 447 vests all authority respecting appropriate unit placement of employees with PERC, Chapter 13B-2(b)(1) authorized Respondent's City Manager to make such determinations. A further examination of Chapter 13B of the Ocala Code reveals that it makes a striking distinction between the authority guaranteed employees respecting the proper bounds for solicitation-distribution rules. Chapter 447.509, Florida Statutes, provides in pertinent part that during an employee's lunch hour, an employer may not restrict solicitation and distribution whereas Chapter 13B of the Respondent's Code restricts solicitation and distribution during working time and on the premises of the City, making no exception or distinction for lunch breaks and therefore Respondent's maintenance of such provisions amounts to unlawful interference, restraint and coercion within the meaning of Section 447.501(1)(a), Florida Statutes. Although the Respondent defends in part on the fact that no employee had been disciplined for violating the above referenced rules, legions of cases have held that the maintenance, without enforcement of an overly broad solicitation-distribution rule constitutes an unfair labor practice. (See for example Essex International, Inc., 211 NLRB 934, 86 LRRM 1411; Dreis and Krump Manufacturing, Inc., 221 NLRB 309, 90 LRRM 1647 (1975).
Recommendation Having found that the Respondent has violated the Act as stated above, I shall therefore recommend that it be ordered to: A. Post at its facilities, in conspicuous places, including all places where notices to employees are usually posted, on forms to be provided by the Commission, a notice substantially providing: that it will not in any like or related manner interfere with, restrain, or coerce its employees in the exercise of any of the rights guaranteed them under the Florida Public Employees Relations Act; that it will upon request of the above-named employee organization, rescind the applicability of Chapter 13B of the Ocala Code as it relates to the regulation of organizational rights of employees, without having been first approved by the Commission. RECOMMENDED this 30th day of June, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Seymour H. Rowland, Jr., Esquire 105 Legal Center 19 N.W. Pine Avenue Ocala, Florida 32670 Jane Rigler, Esquire Staff Attorney Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 Donald D. Slesnick, II, Esquire 2540 N.W. 29th Avenue Miami, Florida 33142
Findings Of Fact The Respondent is an agency of the State of Florida. The Respondent has adopted Fla. Admin. Code Rule 8B-5.11(5)(a), a rule governing practice and procedure before Appeals Referees in appeals from the grant or denial of unemployment benefits by Claims Examiners. This rule provides: Copies of the Notice of Hearing shall be mailed by first class mail to all inter- ested parties and their attorneys or autho- rized agents of record at least seven (7) days in advance of the hearing. Hearings held pursuant to Fla. Admin. Code, Chapter 8B-5 are hearings de novo. The Florida Administrative Procedure Act requires that agencies give not less than fourteen (14) days notice of hearing in all proceedings in which the substantial interests of a party are determined by an agency. Section 120.57(1)(b)2, Fla. Stat. (1978). The Respondent is not exempt from this requirement, and has obtained no waiver of this requirement. Petitioner, MARIE LOUISNE, resides at 19315 S.W. 117th Court, Miami, Florida. Petitioner filed a claim for unemployment benefits on or about February 28, 1978. Her claim was denied by a Claims Examiner, and Petitioner timely appealed this decision. On Nay 24, 1978, the Respondent mailed Petitioner a Notice of Hearing, informing her that a hearing on her appeal would be held before an Appeals Referee on May 31, 1978. That Notice was given pursuant to the challenged rule. Petitioner received that Notice on May 25, 1978. Petitioner contends, and Respondent now agrees, that this Notice is inadequate. Section 120.57(1)(b)2, Fla. Stat. (1978) Petitioner filed this action on May 30, 1978, alleging that she was a party to the scheduled proceeding, and that her substantial interests would be affected at the hearing scheduled for May 31, 1978, in that her entitlement to unemployment benefits depended upon the outcome of that hearing. The Respondent has stipulated to these allegations. The parties have stipulated to the Petitioner's standing to maintain this action.
The Issue The issue is whether the application filed by Mr. Johnson for a certificate of registration as a Florida Farm Labor Contractor should be issued by the Department.
Findings Of Fact Mr. Johnson had been the subject of a prior administrative complaint by the Department of Labor and Employment Security Case No. 88-3795. In that proceeding he was represented by Mr. Thomas Montgomery, Esquire, of Belle Glade, Florida. That proceeding involved an earlier application by Mr. Johnson for a certificate of registration as a Florida Farm Labor Contractor, which the Department denied because Mr. Johnson was liable for unpaid unemployment compensation taxes in the amount of $1,400, and under Rule 38B-4.06(5), Florida Administrative Code, he was ineligible for registration until those unemployment compensation taxes had been paid. The parties had reached a stipulated settlement in that action, under which Mr. Johnson agreed to pay $100.00 per month until the balance due had been paid in full. That stipulation had been signed by Mr. Montgomery, the lawyer for Mr. Johnson. The stipulation was filed on November 18, 1988, with the Division of Administrative Hearings, and consequently an Order Closing File was entered in Case No. 88-3795. Mr. Johnson failed to make payments in accordance with the stipulation agreement. Given the accrued interest and penalties, Mr. Johnson is currently indebted to the State of Florida for unpaid employment compensation taxes, interest, penalties and filing fees in the amount of $2,213.94. Mr. Johnson's failure to make payment as required under the stipulation which he entered into in settlement of Case No. 88-3795, his prior application for a certificate of registration as a Farm Labor Contractor, causes the Hearing Officer to disbelieve that Mr. Johnson was mistaken as to the location of the hearing. The Notice of Hearing was clear. Mr. Johnson has also failed to answer requests for admissions and interrogatories served upon him in this proceeding. Mr. Johnson is continuing to engage in a pattern of conduct designed to evade his responsibility to pay unemployment compensation taxes which he owes. His application for a certificate of registration filed June 4, 1990, should be denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the application of James Johnson for a certificate of registration as a Florida Farm Labor Contractor. DONE and ENTERED this 30th day of November, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 November, 1990. Copies furnished: Francisco Rivera, Esquire Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-0658 James Johnson 391 Shirley Drive Pahokee, Florida 33034 Hugo Menendez, Secretary Department of Labor and Employment Security Berkeley Building, Suite 200 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Stephen Barron, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-0658
The Issue The issue is whether Petitioner timely filed his request for claim form requesting reimbursement for certain covered expenses under the Florida Flexible Benefits Program--Reimbursement Plan.
Findings Of Fact Petitioner is a member of the faculty of the University of South Florida. He participates in the Florida Flexible Benefits Program--Reimbursement Program (Program). The Plan allows participants to pay certain eligible medical or dependent day care expenses with pretax earnings. Each year, during an open enrollment period, an employee may elect to participate in the Program and select an amount of salary to be deducted from his or her pay. The amount of salary so deducted is not subject to federal income tax, but is available to reimburse the employee for covered expenses. In order for the Program to continue to enjoy preferential treatment under the federal income tax law, Respondent, which administers the Program, must adhere to certain rules. Most relevant to this case is that that the deducted salary must be at risk. Specifically, an employee is not entitled to a refund of all or part of the deduction if he or she does not timely submit sufficient reimbursable expenses to exhaust his or her account. The Program brochure clearly warns participants of this "use it or lose it" rule. The plan year for the Program is the calendar year. In 1997, Petitioner was a participant in the Program. He and his wife chose not to submit claims for covered expenses, as they paid them during the year. Instead, they accumulated the receipts with the intent of submitting a single claim for their account balance at the end of the plan year. The Program sets a claims filing deadline of April 15 for filing claims arising out of the expenses paid in the preceding calendar year. The Program brochure warns that this deadline means all claims for expenses incurred during a plan year must be postmarked by midnight, April 15 of the following year to be considered for processing. Any claims received after this date will be returned to the participant unprocessed, regardless of the account balances. Participants should file claims as soon as the required documentation is obtained. This case involves only one issue: whether Petitioner timely submitted his claims for reimbursement under the Program. There is no issue concerning Petitioner's payment of these expenses or his account balance. There is no issue whether these expenses are eligible for reimbursement. In early March 1998, Petitioner and his wife collected their receipts for covered expenses from 1997. Petitioner completed a reimbursement form and addressed the envelope to Respondent at the correct address. Wanting to make copies of the materials, Petitioner did not immediately mail the package to Respondent. A few days later, prior to copying the materials or mailing the package, Petitioner's father became ill in the Mideast, where he lives. Petitioner and his wife agreed that she would copy the materials and mail the package to Respondent. On March 21, which marks the birthday of Petitioner's wife and a cultural holiday for Petitioner and his wife, Petitioner's wife telephoned her husband, who was still visiting his sick father. In the ensuing discussion, Petitioner learned that she had not yet mailed the package. They discussed the matter and again agreed that she would copy the materials and mail the package without further delay. Without further delay, Petitioner's wife copied the materials and mailed the package to Respondent at the correct address. She placed the package with sufficient postage in a mailbox across from her home. The package consisted of a claims reimbursement form and receipts for eligible expenses. It appears that she may have written an old return address on the envelope. Respondent never received the package. Respondent's procedures are carefully designed and executed to ensure that it will not lose a claim form. Repeated searches for the missing form never uncovered it. The package was lost after its mailing by Petitioner's wife and prior to its delivery to Respondent. Possibly, the incorrect address precluded notification to Petitioner of problems with delivery. Possibly, the package was just lost. Unfortunately, Petitioner learned only after the April 15 deadline that Respondent had never received the package.
Recommendation It is RECOMMENDED that the Department of Management Services, Division of State Group Insurance, enter a final order determining that Petitioner timely submitted the claim and eligible expenses that were the subject of this case. DONE AND ENTERED this 8th day of March, 2000, in Tallahassee, Leon County, Florida. 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 8th day of March, 2000. COPIES FURNISHED: Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Thomas D. McGurk, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Mohsen M. Milani 15927 Ellsworth Drive Tampa, Florida 33647 Julia Forrester Assistant General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399
