The Issue Whether Respondent Employer committed an unlawful employment practice by discrimination on the basis of age and/or retaliation1/ against Petitioner, in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Deanna L. Eftoda, was born on August 26, 1949. Respondent, HealthSouth Rehabilitation Hospital of Tallahassee (HealthSouth), is a healthcare facility providing both in-patient and out-patient rehabilitation services in Tallahassee, Florida. As such, it employs personnel designated as "exempt" and "non-exempt," pursuant to the federal Fair Labor Standards Act. Generally speaking, "exempt" employees are salaried employees, in managerial posts, who do not receive over-time pay by the hour, and "non-exempt" employees are regular, non- managerial employees, who are paid a set amount per hour up to 40 hours per week and time and a-half per hour for every hour above 40 hours that they work in the same 40-hour week. There are some exceptions to this federal compensation scheme which are immaterial to this case. At all times material, a “Nursing House Supervisor” or “RN House Supervisor” were interchangeable job titles. Petitioner was initially hired by Respondent on January 26, 2004, as an "RN-Baylor Nurse." The RN-Baylor position was a non-exempt position, and in that position, Petitioner's hourly pay rate was $28.00. Petitioner's hourly rate of $28.00, was very high for an RN-Baylor Nurse, but Petitioner's credentials are exceptional. Within days of her hire, Petitioner was asked whether she would take an RN House Supervisor position. Petitioner accepted the RN House Supervisor position, and a corrected personnel action form reflecting this change was prepared on January 30, 2004. Petitioner signed an acknowledgement of her acceptance of the House Supervisor position on February 22, 2004. Every House Supervisor employed by Respondent during Petitioner's period of employment was an exempt employee. The RN House Supervisor position that Petitioner accepted was an exempt position. Nursing House Supervisors traditionally worked the evening and night shifts, when there was no member of the hospital administration on duty. Without a member of the hospital administration on duty, the Nursing House Supervisor was the highest ranking management employee at the facility. While Petitioner was employed with Respondent as an RN/Nursing House Supervisor, Respondent simultaneously employed “Charge Nurses.” The duties of a Charge Nurse were similar to the duties of a Nursing House Supervisor. However, unlike Nursing House Supervisors, Charge Nurses traditionally worked the day shift, during which higher-ranking members of the facility’s administration were simultaneously on duty. In 2004, Respondent also employed a Charge Nurse on the weekend day shift(s) when at least one administrator was present for several hours. (This anomaly seems to be at least one element which confused Petitioner and led to this case.) Even so, unlike RN House Supervisors, all Charge Nurses were classified by Respondent Employer as filling non-exempt positions. Every Charge Nurse employed by Respondent during Petitioner's employment was classified as a non-exempt employee, eligible to earn time-and-a-half for overtime. Petitioner’s salary was not increased when she accepted the RN House Supervisor position, because her base salary (calculated at $28.00 per hour) was commensurate with the salary of other RN House Supervisors already being paid as managerial employees at straight salary. On the other hand, because Petitioner worked as an RN/Nursing House Supervisor on a “Baylor,” or weekend, shift, Respondent paid Petitioner a special compensation for being scheduled to work every weekend, with no weekends “off.” This special compensation took the form of Respondent’s paying Petitioner as if she had worked 36 hours per week, even though she was only scheduled for 32 actual hours of work per week. Petitioner believes that she worked a minimum of four additional hours per week, because it was her practice to come on shift an hour early and leave an hour late to set up and wind down the area and staff under her supervision as Nursing House Supervisor. She “guessed” there were some weeks when, between this practice and meetings she was required to attend, she worked 32 hours above the usual 40 hours per week. Her “best guess” was that she was working “two (additional) hours per eight-hour shift,” plus attending meetings which were not held during her shift(s), beyond her scheduled 32 hours, but Petitioner never worked straight eight-hour shifts. (See Findings of Fact 12-15, and 25.) A Nursing House Supervisor working the Baylor shift, or an RN-Baylor Nurse, normally worked two twelve-hour shifts on the weekend and one eight-hour shift during the week. When Petitioner was hired by Respondent in January 2004, she was completing a second doctoral degree. In order to accommodate Petitioner's work on her dissertation, Respondent had offered Petitioner an irregular shift pattern consisting of two sixteen- hour shifts on the weekends. Petitioner had accepted this scheduling accommodation. As RN House Supervisor, Petitioner was required to attend occasional mandatory meetings for Nursing Supervisors and other nursing staff. These meetings were held during the week, and usually, but not always, between 5:00 and 6:00 p.m. This meeting time was more convenient for employees regularly working the weekday shift immediately before 5:00 p.m. or coming on shift immediately after 6:00 p.m., than for staff on other shifts, but no age or retaliation component existed with regard to Petitioner or anyone else on other shifts. Petitioner also was required once or twice to attend several hours of computer classes in a single day and other training, but so was everyone else on staff. Because the meetings were not on the weekends during the hours Petitioner would normally work, Petitioner’s attendance at the mandatory weekday meetings upset Petitioner's personal plans for study, research, and writing her doctoral dissertation, but there is no evidence she was singled out for this inconvenience. Petitioner claimed herein that she was entitled to be paid overtime for coming to "work" for meetings and classes. Because her Nursing House Supervisor position was an exempt position, Petitioner was not paid overtime for attending these mandatory meetings and classes, but no other exempt employees were paid overtime for attending these meetings and classes outside of their normal working hours, either. Respondent's policy does provide that if a Nursing House Supervisor works an additional shift as a "floor nurse," separate and apart from his/her regularly scheduled shifts as a House Supervisor, then that Nursing House Supervisor can be granted additional pay for that additional shift during which he/she works as a floor nurse, even though the House Supervisor position is that of an exempt employee. In order to be granted this additional pay, the Nursing House Supervisor must fill out an "Additional Pay for Exempt Employees" request form and submit the form to management for prior approval. The mandatory weekly meetings that Petitioner was required to attend as a part of her Nursing House Supervisor duties did not qualify as a full additional shift, for any employee. Petitioner received a memorandum dated April 12, 2004, explaining this. In fact, When Petitioner filled out the correct form for work as a floor nurse, she was paid at the $27.50 per hour rate for a floor nurse. She was not paid when she filled out such a form for mandatory staff meetings, classes, and training sessions. Petitioner represented that throughout her employment by Respondent, she repetitively and persistently inquired about how her pay was being calculated and why the Employer did not calculate it the way she thought it should. She also claims to have repeatedly requested a different calculation of her pay and leave accruals on the basis of her beliefs and desires, but at the time she made no formal claim or discrimination complaint related to these inquiries and requests. In her testimony, even Petitioner described what she was doing as “negotiating” her salary. Throughout her employment by Respondent, Petitioner was cited by management for performance problems, including but not limited to difficulty in dealing with staff; poor management style; poor judgment in dealing with her supervisors and subordinates; creating confusion and chaos for staff on her scheduled shift by her confrontational manner; failing to properly address performance concerns with staff on her scheduled shift; and failure to take responsibility for her own actions. Giving Petitioner the benefit of the doubt, some of her friction with management and staff may have arisen because of her complaining that evaluators did not observe her for an entire shift; because she mis-read management’s instructions on how to code her timesheets as a requirement to falsify them; because she perceived that Respondent’s staffing levels occasionally fell below matrix, and she then created turmoil by calling in extra staff, whereas her superiors did not share her interpretation of the matrix requirements or the staffing events themselves; because she blamed the preceding shift for cleanliness issues; because she perceived herself undervalued for her extensive nursing experience; because she perceived herself personally opposed and ridiculed by a nurse of lesser or equal rank (Mandar); and because she did not believe that her superiors backed her up sufficiently and/or did not afford her the appropriate discretion in her interactions with subordinates. Petitioner objected to Respondent’s chain of command, which had her reporting to Ms. Roberts, Nurse Manager. Petitioner felt she should report directly to the Director of Nursing, her “two-up” supervisor. However, none of these disputes rose to the level of a protected activity under Chapter 760.10(7), Florida Statutes (see Finding of Fact 35), or related to Petitioner's age in any way. From Respondent's perspective, its administration received a myriad of complaints from Petitioner's supervisors, peers, and subordinates, regarding Petitioner's management style and performance. Some of Respondent's employees threatened to quit if they were forced to continue to work under Petitioner's supervision. Petitioner testified that in July 2004, she had polled her subordinates and asked them to indicate that they had “no problems” with her management style. Then she presented the list of subordinates to her superiors. This could have legitimately been viewed by Respondent’s management as Petitioner’s insubordination to them and/or intimidation of the polled subordinates by Petitioner. Respondent’s Nurse Manager and Petitioner’s direct supervisor, Barbara Roberts, felt that she was being required to spend an inordinate amount of her time dealing with Petitioner's problems. As a result of these problems, Petitioner was placed on probation on September 10, 2004. Petitioner challenged this probation, and a review was conducted by Respondent's management. Despite the fact that the complaints concerning Petitioner's management style and performance came from various sources, Petitioner complained that Ms. Roberts was unfairly disciplining and harassing her. Respondent's management concluded that the attention Petitioner had received from Ms. Roberts was not improperly motivated, but was a result of personality conflicts between Petitioner and other employees. Some of the allegations against Petitioner were substantiated, but investigation into an allegation that Petitioner had coerced or threatened employees into working, only produced limited supporting documentation. In the absence of additional documentation, Lynn Streetman, Hospital Administrator, concluded that probation was not the correct level of discipline for Petitioner. (P-22) Ms. Streetman recommended that Petitioner's supervisor, Ms. Roberts, chalk the problems up to differences in management style and downgrade Petitioner’s probation citation to a "written warning." On September 30, 2004, the probation citation was replaced with a written warning citation. Also on September 30, 2004, six months after Petitioner’s initial hire and approximately five and a-half months after she accepted the exempt Nursing House Supervisor position, Ms. Roberts sent Petitioner a memorandum informing her that it was no longer operationally feasible to continue the irregular pattern of two sixteen-hour shifts on the weekend (R- 3).2/ Respondent's reason for this change was that for four hours of each day that Petitioner was scheduled to work, there was an overlapping period when two supervisors were on duty, and this duplication of supervisory personnel resulted in an unnecessary expense for Respondent. Ms. Roberts' memorandum informed Petitioner that it was operationally necessary for Petitioner to begin working the traditional Baylor-RN's two twelve-hour weekend shifts and one eight-hour shift during the week, beginning with the October 16-17, 2004, weekend. This managerial decision obviously inconvenienced Petitioner for purposes of completing her doctoral dissertation, and she contends the decision was “retaliatory.” However, the change had been in discussion with management before September 30, 2004. Immediately after her probation was down-graded to a written warning, Petitioner asked for a weekend off, which was granted. Because she took a weekend off at that time, Petitioner had one less weekend to use later in December 2004. (See Finding of Fact 36.) Approximately October 17-18, 2004, when her new shift arrangement was beginning, Petitioner's supervisors again sought to put her on probation, due to a series of complaints by staff similar to the previous ones. Ms. Roberts and other superiors believed Petitioner distorted common conversations and created chaos on her shift by misinterpreting in her conversations with her subordinates the instructions her superiors had given her. In accord with its policy, Respondent launched a second investigation into Petitioner's alleged misconduct. On December 11, 2004, prior to conclusion of the second investigation, Petitioner sent an e-mail to Ms. Roberts and to Respondent's Human Resources Director, Jackie Chaires, requesting that her status be changed from full-time Nursing House Supervisor to "PRN," or "as needed," status. Petitioner's e-mail stated, I believe I have 'too many irons in the fire.' With my dissertation and numerous meetings outside my 32 hours, I find myself run down. To remedy this situation I am willing to wait until January 17, 2005 for this transition to begin. Please advise as to the salary changes. Petitioner believed that by giving four weeks’ notice before the date she wanted to “go PRN” she would be entitled to a payout of “personal time off” (PTO). However, due to subsequent events, she was not entitled to an "in cash" payout of PTO. (See Findings of Fact 59-60.) Respondent's policy provided that at any time an employee moved to a new position, he/she was placed on a 90-day mandatory probation to assess his/her performance in that new position. Because Petitioner was to be placed on a mandatory 90-day probation at the time that her status changed to PRN, there was no need to also place Petitioner on probation due to the conclusions of the second investigation into her alleged misconduct. However, Ms. Streetman instructed Ms. Chaires and Ms. Roberts to meet with Petitioner to go over the various performance problems that Petitioner was experiencing, and to inform Petitioner that continued poor performance in these areas during her PRN probationary period could result in disciplinary action up to, and including, termination. This meeting took place on December 15, 2004, and led to a rebuttal by Petitioner on December 29, 2004. (See Finding of Fact 34.) Petitioner previously considered moving to PRN status during February 2004. Petitioner also claimed that in March or April 2004, she had requested to be moved back to an RN-Baylor Nurse position, and that Ann McElreath, Director of Patient Care Services/Director of Nursing, told her that she could not make such a move without suffering a 45-percent decrease in compensation. Ms. McElreath testified that she did not remember any such request from Petitioner, and that she never told Petitioner that Petitioner would suffer a 45 percent decrease in pay if she moved back to a Baylor-RN position. Ms. McElreath further testified that she would have no reason to make such a statement to Petitioner, because she was not involved in any way in setting salaries. In light of the differential between part-time and full-time pay schedules, as discussed hereafter (see Findings of Fact 38 and 58), and the complexity of Respondent Employer’s other pay categories, coupled with the complexity of Baylor status, one can see how Petitioner misunderstood her situation, but her testimony evidences a clear misunderstanding of how Respondent calculated salaries, as well as a misunderstanding of the effect of designating exempt and non-exempt positions. On December 29, 2004, Petitioner sent a memorandum to Ms. Roberts, Ms. Chaires, Ms. Streetman, and Ms. McElreath, requesting to rescind her request to move to PRN status and requesting to finish another six months as House Nursing Supervisor; complaining about “harassment” by Ms. Roberts due to Ms. Roberts’ telephone calls reminding Petitioner to attend meetings and Ms. Roberts’ “insulting” Petitioner’s professional abilities by not seeing/taking Petitioner’s side of many issues with staff. Petitioner requested to begin “dispute resolution.” At no point in this memorandum did Petitioner mention anything about alleged discrimination on the basis of age. At no point during any investigation, nor at any other time, did Petitioner allege that she was being discriminated against based on her age. She did allege harassment by her immediate supervisor, Ms. Roberts, but this was in the nature of challenging Respondent’s basic chain-of-command decisions; Ms. Roberts' not permitting her sufficient discretion; and Petitioner’s belief that only Petitioner could interpret Center for Disease Control (CDC) requirements regarding cleanliness and restrictions on the employment of coughing personnel and Occupational Safety and Health Act (OSHA) staffing requirements with regard to scheduling additional staff and instructing staff concerning these issues. Yet, Petitioner has never posed any complaint directly alleging violations of any federal or state regulation besides her “exempt” versus overtime issues, which she raised for the first time, herein. Petitioner wanted to take off December 31, 2004, and January 1, 2005 (New Year’s Eve and New Year’s Day), and she had been authorized in advance to do so. However, that authorization was rescinded when management discovered that she had already used the three weekend leaves to which she was entitled and that there might be staffing problems for the weekend period requested. (See Findings of Fact 26 and 54-57.) Petitioner had already made arrangements for her personal activities, and badgered management by e-mail to give her one or the other day off. Management ultimately let her have one of the days off, despite its “only three weekends” policy. Due to Petitioner’s on-going performance problems; management’s continuing concerns about her ability to effectively function as Nursing House Supervisor raised in the second misconduct investigation; and the patient safety concerns raised by her admission that she felt she had too many demands on her time, Respondent's management declined to allow Petitioner to rescind her request to move to PRN status. On January 5, 2005, Ms. Chaires told Petitioner, and on January 10, 2005, Ms. Chaires sent Petitioner a formal acknowledgement, of Respondent's acceptance of Petitioner's request to move to PRN status, effective January 17, 2005. On January 12, 2005, Ms. Chaires sent Petitioner an e- mail communication outlining the Respondent Employer’s pay rates for PRN status/service. Because Petitioner would be moving from a full-time House Nursing Supervisor position to a part-time PRN position, Ms. Chaires informed Petitioner that there would be a reduction in her salary from $28.00 per hour to $21.00 per hour. Ms. Chaires testified that it was customary for an employee moving from a full-time House Supervisor position to a PRN position to experience a reduction in pay. Petitioner claimed she was discriminated against because she received no merit increase at the end of 2004. She believes the lack of merit increase constituted retaliation for her obtaining the rescission of probation on September 30, 2004. Actually, Respondent’s employees undergo performance evaluations approximately every October. According to Respondent's policy, if an employee is on probation at any time during the third- quarter (July, August, September) of the calendar year, that employee is not eligible for a merit increase in connection with that year's October performance review. Respondent considered Petitioner ineligible for a merit raise at the end of 2004, because she had been on probation in September 2004; because there was a second investigation into Petitioner's performance and alleged misconduct that continued at least until December 15, 2004; and because Petitioner had requested to change her status to PRN. Because Petitioner’s probation was rescinded on the last day of September 2004, she technically was not barred from a merit increase due to being on probation in the third quarter, but she continued to be in the turmoil of some sort of disciplinary investigation until at least December 15, 2004. Respondent may have not followed the letter of its policy, but it maintained that policy’s spirit and purpose in not rewarding with a merit increase an employee who was subject to discipline at any moment. Petitioner also has not demonstrated that she was eligible for a merit increase based on meeting or exceeding performance standards. There is no credible evidence that the lack of an evaluation, the contents of an evaluation, or the lack of a 2004 merit increase in pay for Petitioner, constituted discrimination against her on the basis of her age or in retaliation for any protected activity. On January 14, 2005, a Friday, Petitioner had a friend phone Ms. Roberts on her behalf. The friend informed Ms. Roberts that Petitioner had undergone surgery that same day and would not be able to work as scheduled on the upcoming weekend. When Ms. Roberts inquired as to what kind of surgery Petitioner had undergone, the speaker would not give that information to Ms. Roberts. Ms. Roberts informed the caller that Petitioner should call Respondent to discuss her expected recovery time and her availability to return to work. Petitioner, who testified that she had listened to the foregoing conversation, described Ms. Roberts as “rude,” and the phone call may, indeed, have been acrimonious, in that the caller insisted on Petitioner’s right to medical privacy and Ms. Roberts wanted some detailed explanation why Petitioner was unable to report for work and why Petitioner was giving such short notice for her weekend shift(s), if she had not been in an accident and if she had elected the surgery in advance. At hearing, Petitioner’s explanation for her inability to work her last House Supervisor shift(s) covering January 14, 15, and 16, 2005, was that she had elected minor surgery with the intent to return to work her regular shift, but the procedure had turned out to be more debilitating than she had expected, so she could not return to work as scheduled. Also by date of January 14, 2005, Petitioner submitted an application for PRN employment with a different health care provider, Interim Healthcare. This date was a little more than a month after Petitioner had requested PRN status with Respondent; a little more than two weeks after Petitioner had sought to rescind that request; and two days after Respondent had declined in writing Petitioner's PRN rescission request. It was three days prior to Petitioner's scheduled move to PRN status with Respondent on January 17, 2005, pursuant to her accepted request. There was nothing to prohibit Petitioner from signing-up for PRN work with multiple health care providers. Because Petitioner did not show up for her last three scheduled shifts (two days) as Nursing House Supervisor, Respondent's policy required Petitioner to provide a doctor's note releasing her to return to work before Respondent would place her on PRN duty. Petitioner never provided Respondent with a doctor's note releasing her to return to work. Petitioner's testimony, that Ms. Chaires had told Petitioner on some previous occasion that as an "exempt" employee Petitioner did not need a doctor’s note for her absences, is not credible upon the record as a whole. It also is immaterial whether Petitioner's absence for her last three shifts/two days equate with "three consecutive days' absence," per Respondent’s policy on doctors’ notes, because more than three days passed without any word from Petitioner in response to Ms. Robert’s January 14, 2005, instructions by telephone. Respondent’s witnesses maintain that after January 14, 2005, Petitioner never initiated contact with Respondent in any way to discuss her availability for work, and that Ms. Streetman first phoned Petitioner in March 2005, to determine whether she was returning to work as a PRN. Petitioner claims that Respondent did not call her for any PRN work until May 2005, and therefore, in effect, Respondent constructively terminated Petitioner’s employment. There also is some divergence in testimony whether or not Respondent mailed Petitioner a package of materials with instructions that she must complete and return those materials before Respondent would call her for PRN duty, in March or at any other time. However, there is no dispute that during May 2005, Ms. Streetman, as acting interim Human Resources Director for Respondent, had telephone contact with Petitioner to coordinate Petitioner’s return to work as a PRN nurse. During this conversation, Petitioner informed Ms. Streetman that she would not return to work for Respondent as a PRN nurse under any circumstances. Petitioner stated that she would only work for Respondent if: Petitioner were returned to the position of full-time House Supervisor; Petitioner would only work a 16-hour shift on the weekends; and Ms. Streetman would set up a meeting with herself, Petitioner, Ms. Roberts, and a corporate representative of Respondent to discuss the resolution of various issues Petitioner wanted addressed. These issues were much as set out previously. (See Findings of Fact 17-19 and 35-39.) Age does not seem to have been one of Petitioner’s issues. Petitioner also indicated that she had not received the PRN packet of information that Respondent maintains it had sent her. Ms. Streetman immediately forwarded a copy of the PRN package to Petitioner. Although Petitioner provided a copy of a current CPR card to Respondent in May of 2005, she did not provide a doctor's note releasing her to return to work, her executed PRN paperwork acknowledging her duties and responsibilities as a PRN nurse, or an executed acknowledgement of Respondent's HIPPA policies and procedures, all of which Respondent required before putting Petitioner on its PRN status/phone list. On or about May 24, 2005, Ms. Streetman once again contacted Petitioner and informed her that she was unable to bring Petitioner back to work under the conditions that Petitioner had previously outlined, but Respondent was willing for Petitioner to work as a PRN nurse. Once again, Petitioner informed Ms. Streetman that she would not return to work as a PRN nurse under any circumstances. Accordingly, at that time, Ms. Streetman terminated Petitioner. During her employment with Respondent as a Nursing House Supervisor, Petitioner accrued PTO, in accordance with her position and length of service. As a Nursing House Supervisor, Petitioner should have accrued PTO at the rate of 7.69 hours of accrued PTO per two week pay period, which corresponds to the PTO accrual schedule for staff employees. However, due to a clerical error by Ms. Chaires, Petitioner actually had been allowed to accrue PTO at a rate of 9.54 hours of accrued PTO per two-week pay period, which corresponds to the PTO accrual schedule for department head employees, even though as Nursing House Supervisor, Petitioner was not a department head. Respondent's policy in 2004, permitted all Baylor, or weekend, employees of Respondent to expend PTO hours on no more than three weekends per year. Because Petitioner worked a Baylor, or weekend, schedule as Nursing House Supervisor, Petitioner was limited to using PTO for three weekends per year. Petitioner signed off on, and acknowledged, this three weekend limitation. Although this policy limited the weekend days on which Petitioner was entitled to use her accrued PTO, Petitioner was entitled to use her accrued PTO for any weekday shifts for which she was scheduled after September 30, 2004, when Ms. Roberts informed her that it was operationally necessary for her to work at least one eight-hour shift during each week. During 2004, Petitioner used 171 hours and 15 minutes of PTO, and all three of her allotted weekends off as a Baylor employee of Respondent. (See Findings of Fact 26 and 36.) Later in 2005, Respondent re-examined its PTO leave policy. In order to compete for staff with other local health care providers, Respondent changed the number of allowed weekend PTO days for its Baylor employees from three to four weekends. However, this increase in the number of weekend leaves permitted for Baylor employees did not affect Petitioner, because her request to move from full-time Nursing House Supervisor to PRN nurse had been granted, effective January 17, 2005, and the new leave policy was not retroactive. A PRN nurse occupies a part-time position. As a PRN nurse, Petitioner was not eligible to accrue or use PTO. On January 22, 2005, Petitioner’s PTO balance was 4.37 hours, meaning Petitioner had 4.37 hours of PTO available for use. The dollar value of Petitioner’s remaining PTO hours amounted to $83.09. According to Respondent's policy, an employee was eligible for a cash payout for his/her unused PTO hours upon voluntary resignation (including a voluntary employment status change) and/or involuntary lay-off if: (1) the employee had successfully completed his/her 90-day probationary period; (2) the employee provided Respondent with proper notice; and (3) the employee worked a minimum of four hours on his or her final scheduled day of work. Whether Petitioner successfully completed her probationary period as a Nursing House Supervisor is not at issue in this case. Sufficient notice of status change is not at issue in this case. (See Findings of Fact 29- 30.) Petitioner did not receive a cash payout for her 4.37 unused PTO hours on January 17, 2005, when she moved from a full-time Nursing House Supervisor position to a PRN nurse position, because she did not work the required four hours on her final scheduled day of work as a Nursing House Supervisor. Petitioner missed her final three scheduled shifts as a Nursing House Supervisor in January of 2004, and she did not work on the day that her employment with Respondent was terminated. whether one counts the status change date of January 17, 2004 or the final termination date in May 2005. (See Findings of Fact 45 and 52.) Therefore, Petitioner was not eligible for a PTO payout under Respondent Employer’s policy at the time her status changed to PRN nurse, January 17, 2005. Between January 14, 2005, and November 2005, Petitioner did not apply for any type of work so as to mitigate potential damages. After January 14, 2005, she had PRN status with Interim Healthcare, but she did not accept work from Interim until November 2005. During that period, she only attended classes and lived on her student loans. Petitioner had previously acquired at least a J.D. (law degree), two nursing degrees, and possibly another doctorate. With these credentials, she was certainly not “unemployable” during the interim of January-November 2005. Petitioner never complained to Ms. Roberts, her direct supervisor, that Petitioner believed that she was being discriminated against on the basis of her age. In 2004, Petitioner would have been 55, and Ms. Roberts would have been 51 years of age. Ms. Roberts never treated Petitioner any differently than any other Nursing House Supervisor. Ms. Roberts was not actively aware of Petitioner's age at any time during her employment. Petitioner never complained to Ms. McElreath, then- Director of Nursing and Petitioner's “two-up” supervisor, that Petitioner believed she was being discriminated against on the basis of her age. Ms. McElreath would have been 50 to Petitioner's 55 years of age at all times material. Petitioner never complained to Ms. Chaires, Director of Human Resources, that Petitioner believed she was being discriminated against on the basis of her age. No decision that Ms. Chaires made concerning Petitioner was motivated by Petitioner's age. Petitioner never complained to Ms. Streetman, Respondent's administrator, that Petitioner believed she was being discriminated against on the basis of her age. Ms. Streetman would have been 49 years of age, at all times material. No decision that Ms. Streetman made concerning Petitioner was motivated by Petitioner's age.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and Charge of Discrimination. DONE AND ENTERED this 22nd day of September, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 22nd day of September, 2006.
Findings Of Fact On July 9, 1986 Petitioner, a Clerk Typist Specialist employed by the Department of Health and Rehabilitative Services, signed a receipt acknowledging that she had received a copy of the Department's Employee Handbook which contains the information that an employee who is absent for three consecutive workdays without authorization may be considered to have abandoned his or her position and thereby to have resigned. On September 3, 1987 Petitioner telephoned her supervisor to advise him that she had an interview scheduled and that she would be at work by 9:30 a.m. She, however, thereafter failed to appear at work and failed to make any further contact with her supervisor on September 3, 4, 8, 9, 10, and 11, 1987. On September 11, 1987 by certified letter the Department advised Petitioner that, as of the close of business on September 9, she was deemed to have abandoned her position and to have resigned from the Career Service due to her unauthorized absence for three consecutive workdays, i.e., September 3, 4, and 8, 1987.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is, RECOMMENDED that a Final Order be entered deeming Petitioner to have abandoned her position and to have resigned from the Career Service. DONE AND ORDERED this 30th day of November, 1987, in 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 30th day of November, 1987. COPIES FURNISHED: Ruby Holloway-Jenkins 649 West 4th Street Riviera Beach, Florida 33404 K. C. Collette, Esquire District IX Legal Counsel 111 Georgia Avenue West Palm Beach, Florida 33401 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
Findings Of Fact For purposes of Respondent's Motion to Dismiss and Relinquish Jurisdiction the relevant factual allegations set forth in Petitioner's complaint and the Petition for Relief are accepted as true. On June 26, 1992, at the time Petitioner left employment with Respondent, Petitioner had been employed by Respondent for approximately ten years. Petitioner's last position with Respondent was Division Manager within the sales organization. Petitioner was the highest ranking female employee in the sales organization. Petitioner's employment record with Respondent was excellent and included six promotions, substantial pay increases, and positive performance evaluations. From December 1991 until June 26, 1992, Alan Casey was Petitioner's direct supervisor. Petitioner's office was located in Tampa, Florida. Casey's office was located in Kennesaw, Georgia. The only other employee located in Casey's office was his secretary, Lynda Cunningham. While being supervised by Casey, Petitioner, was aware that of the five Division Managers reporting to Casey, she was the only female. The Division Managers worked independently within separate assigned territories and did not have day to day contact with each other. However, despite this geographic separation, Petitioner met with Casey and the other District Managers at two quarterly regional meetings and spoke with them during weekly staff meetings conducted by telephone conference. In addition to these meetings, Petitioner occasionally spoke to her male peers to share ideas concerning work. While Casey was her direct supervisor, Petitioner knew that her sales results were higher than the other male Division Managers reporting to Casey. Between March 3, 1992, and May 12, 1992, notwithstanding Petitioner's performance in sales, Casey placed ten memoranda critical of Petitioner's performance in her personnel file. At the time Petitioner received these memoranda, she believed that they were unjustified, harsh and abusive. Petitioner further believed that the memoranda were factually inaccurate and criticized her for things out of her control. At one regional meeting, Petitioner heard her peers express their dissatisfaction with Casey as a supervisor. However, Petitioner did not participate in this conversation and never discussed with the other Division Managers about how Casey was treating her and the excessive number of negative memoranda he had written to her. Prior to her resignation, Petitioner believed that Casey treated her unfairly by (1) failing to offer assistance to Petitioner as he offered to male Division Managers and (2) conducting unannounced visits to Petitioner's sales marketing area which he did not do with male Division Managers. Moreover, before resigning from her position with Respondent, Petitioner believed that Casey "undermined [her] efforts in [her] area of responsibility." Petitioner was aware that Respondent had a policy for resolving disputes which required employees to address issues of concern with their direct supervisor. If these initial efforts to resolve disputes failed, an employee could appeal to a higher official in the company. With respect to complaints involving discrimination based on race or sex, the Respondent's policy required that employees refer such matters to the company's Human Resources Office. Petitioner met with Casey to discuss her concerns regarding what she perceived to be his unfair treatment of her. However, her efforts to resolve the situation at this level were unsuccessful. Petitioner chose to resign from her position with Respondent, rather than utilize the company's dispute resolution procedure. Petitioner's resignation, which became effective June 26, 1992, was because of the criticism and lack of support from Casey. On May 13, 1994, almost two years after Petitioner's resignation, Petitioner received a telephone call from Lynda Cunningham, Casey's secretary during the time he supervised Petitioner. Cunningham informed Petitioner that she had overheard a telephone conversation between Casey and Rick Elsperman, Director of Human Resources for Respondent, in which Casey requested instruction and assistance in documenting a female manager's personnel file to force her resignation or to support her termination. During the May 13, 1994, telephone conversation, Cunningham further informed Petitioner that subsequent to Casey and Elsperman's conversation, Casey directed Cunningham to forward all of Petitioner's personnel memoranda to Elsperman for approval before sending them to Petitioner. According to Cunningham, this procedure was not followed for male managers. Petitioner had no knowledge of the information provided by Cunningham prior to May 13, 1994. While Petitioner was employed by Respondent, she had concerns related to the company's treatment of and attitude toward women. First, Petitioner perceived that the Respondent's management did not make efforts to train and support the advancement of females and minorities. Second, Petitioner became aware that several females in the retail merchandising company of the organization had been given additional job responsibilities without comparable salary increases. In addition to her perceptions about Respondent's treatment of females, in 1987, Petitioner became aware that her salary as a district manager for Respondent was lower than that of male subordinates holding lower sales positions, with less experience, tenure, and responsibility. As a supervisor, Petitioner had access to the personnel files of the employees who reported to her which documented that a male subordinate's salary was higher than Petitioner's salary. Petitioner initiated an internal inquiry and the company chose to raise her salary to a level comparable with men in the same position with the same tenure and responsibility. Prior to her resignation, on one occasion, Petitioner overheard a conversation in which a district manager with Respondent stated that management's objective was to hire young, white, male degreed persons for starting level positions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Motion to Relinquish Jurisdiction is GRANTED. ORDERED that the Division of Administrative Hearings file be CLOSED. RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the petition of Tammy M. Young. DONE and ORDERED this 3rd day of September, 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 3rd day of September, 1996.
The Issue The issues are whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her disability and by retaliating against her, and if so, what, if any, relief is Petitioner entitled to receive.
Findings Of Fact Petitioner is Respondent's former employee who began working for Respondent in 1993. Petitioner was most recently assigned to the warehouse in eastern Jacksonville, Florida, where she worked from October 2000 until September 2007. When she first transferred to the warehouse, Petitioner worked as the Return-to-Vendor (“RTV”) Clerk. As the RTV Clerk, Petitioner was responsible for shipping out returned merchandise to vendors and shipping salvaged items to the salvage companies. In 2004, Petitioner transferred to the Receiving Clerk position. Petitioner remained in the Receiving Clerk position until September 19, 2007, when she began a medical leave of absence. Jason Zook became the manager of the warehouse in May 2005. As the Warehouse Manager, Mr. Zook is responsible for overseeing the entire warehouse, including the Receiving Department. Mr. Zook is familiar with the requirements of the Receiving Clerk position because he previously worked in that position at another warehouse. Michael Sinanian is one of the Assistant Warehouse Managers. Mr. Sinanian transferred to the warehouse as an Assistant Warehouse Manager in 2002. Prior to becoming an Assistant Warehouse Manager, Mr. Sinanian worked in the Receiving Department at other warehouses for a little over two and a half years. During that time, Mr. Sinanian worked as a Receiving Manager, a Receiving Supervisor, an RTV Clerk, and a Receiving Clerk. The Receiving Department is located at the back of the warehouse. The warehouse is approximately the length of a football field from front to back. At all times material here, the Receiving Department at the warehouse had four positions: Receiving Manager, Receiving Clerk, Receiving Secretary, and Forklift Driver. In 2007, Deborah Lenox was the Receiving Manager, an employee named Sonya was the Receiving Secretary, Petitioner was the Receiving Clerk, and an employee named Valdean was the Forklift Driver. The Receiving Secretary and the Receiving Clerk have different job responsibilities. The Receiving Secretary is responsible for answering the phone, making vendor appointments, logging the appointments, dealing with paperwork, creating and printing out receiving tags, and logging shipment information into Respondent's computer system. The Receiving Clerk is responsible for counting and checking merchandise against freight bills, opening boxes and cartons with a box knife to verify and count the product, stacking bed-loaded merchandise or merchandise from damaged or unacceptable pallets onto approved pallets, separating mixed items from pallets for checking, wrapping pallets with plastic wrap in preparation for movement onto the warehouse floor, loading merchandise and emptying pallets onto trucks using a manual pallet jack or hand cart, and cleaning and clearing the receiving dock of any debris and trip hazards. Each of these essential job functions requires standing, which is consistent with the job analysis for this position. Respondent has written job analyses, which identify the essential functions of each job and are used to assist the Company, the employee, and the employee’s doctor in determining if the employee can perform the essential functions of his/her job with or without reasonable accommodations. Respondent does not remove or eliminate essential job functions, but will sometimes modify the manner in which the function is to be completed. Respondent will not displace another employee from his position in order to accommodate a disabled employee. A pallet of merchandise can be as much as 60 inches high. A typical pallet coming in the warehouse is a 60-inch cube. An electric pallet jack is a double pallet jack and is approximately 18 feet long. In order to operate an electric pallet jack, an employee has to stand and lean in the direction that she wants the machine to go and turn the handle. There is no seat on an electric pallet jack. Petitioner’s original foot condition was due to osteomyelitis, an infection of the bone. Between 1998 and 1999, Petitioner had four surgeries to address her foot condition. A surgeon placed an artificial plastic bone in Petitioner's foot in July 1999. In September 1999, Petitioner returned to work with medical restrictions that prevented her from standing for long periods of time and from lifting more than 25 or 35 pounds. At some point thereafter, while Petitioner was working at one of Respondent’s warehouses in Memphis, Tennessee, her podiatrist changed her restrictions to add limitations against cashiering, stocking, and inventory. Petitioner understood that the reason for these additional restrictions was that she was not able to do these tasks to the extent they required her to stand for a prolonged period of time. Petitioner’s medical notes stated that she was able to use her discretion as to her limitations, which Petitioner understood to mean that she could sit and rest her foot as needed. Each of these restrictions was permanent. Mr. Zook, Ms. Lenox, and Mr. Sinanian were all aware that Petitioner had medical restrictions relating to her foot condition that prevented her from standing for prolonged periods of time. They were aware that Respondent had agreed to allow Petitioner to sit down when she felt it was necessary, without first having to ask for permission. Despite her restrictions, Petitioner is able to ride her bike, go the grocery store, and work out at the gym. During the relevant time period, Petitioner worked out at the gym approximately four days a week. Her work-out routine included warming up on an elliptical machine for approximately 15-to-20 minutes or walking approximately one mile on the treadmill and using a leg press machine. Respondent performs inventory twice a year. It takes an inventory at all warehouses in February and August. The inventory process begins on Friday night and continues until the following Wednesday. The back-stock is counted on Friday night after closing and the stock on the sales floor is counted on Saturday night after closing. The post- audit process begins on Sunday morning before the warehouse opens to its members and continues on Monday morning. The Saturday night inventory count is more labor- intensive and is considered “all hands on deck.” The Saturday night inventory requires the staff to count approximately $9 million worth of inventory during roughly a five-hour period. On Saturday, Respondent assigns two employees to count the items in each aisle at the same time. The employees double- check each other’s counts. If there is a discrepancy between the employees’ counts, both will recount the items until their counts agree. If there are discrepancies after the Saturday counts between the physical counts and the computer records, the items are recounted during the Sunday post-audit. If variances still remain after the three counts, then the variances are researched during the Monday post-audit. For the Monday post-audit, Respondent only focuses on the larger-quantity, higher-dollar discrepancies. When researching the discrepancies from the variance reports, employees have to perform the following tasks: (a) count items on the floor or up in the steel racks; (b) verify bin tags; (c) research billing, shipment, and return-to-vendor records on Respondent’s computer system; and (d) check the receiving paperwork in an effort to locate and correct the source of the discrepancy. Some items will have been sold between the Saturday night count and the Monday post-audit process. Therefore, the Monday post-audit team also may have to research the sales history on a computer and back out the Sunday sales from the total count. The variance reports reflect the aisle where the item is located, the item count from the inventory count, the computer system count, and the amount of the variance. Employees are typically assigned to work in one department of the warehouse, which may require them to walk from aisle to aisle within that department. In order to assist the Monday post-audit team, the team is permitted to use computers throughout the warehouse. Employees can sit down at the computers when they are researching the variances in item counts. It can take anywhere from 15-to-30 minutes to research one item. The duties involved in the inventory post-audit process are similar to the job duties of the Receiving Clerk position. However, the post-audit does not require as much standing and is less physically demanding because the focus during post-audit is on researching the sources of the variances, rather than simply receiving, counting, and checking- in shipments. In selecting employees to work on the Monday post- audit team, Respondent prefers to schedule people who are familiar with Respondent’s return-to-vendor and receiving processes. Respondent also selects employees who are knowledgeable about Respondent’s AS-400 computer system. In February 2007, Petitioner worked the Saturday night inventory. During that time, she counted the bread then worked at the control desk. Petitioner's job at the control desk was to key-in inventory count sheets into Respondent’s computer system. Petitioner did not view this assignment as inconsistent with her restrictions against working inventory because she was seated for most of the time. In August 2007, Mr. Sinanian was responsible for the post-audit processes, including the scheduling of employees to work post-audit. Due to the requirements of post-audit, Mr. Sinanian selected people who, like Petitioner, were familiar with Respondent’s AS-400 computer system. Approximately 20 employees worked during the Monday post-audit. Mr. Sinanian and Ms. Lenox knew that Petitioner could use her discretion to sit down whenever she felt it was necessary. They had no reason to believe that the post-audit process was inconsistent with Petitioner’s medical restrictions. Therefore, she was selected to work the Monday post-audit. On Saturday, August 25, 2007, Petitioner was again assigned to count bread and then assist with keying inventory count sheets into the system. Petitioner was able to sit down while she was working at the control desk keying the inventory count sheets. Petitioner did not consider her Saturday assignments inconsistent with her restrictions. Petitioner did not work or perform any inventory or post-audit, inventory-related duties on Sunday, August 26, 2007. On Monday, August 27, 2007, the post-audit process lasted from approximately 5:00 a.m. until 10:00 a.m. Petitioner’s shift began at 5:00 a.m. After Petitioner clocked in, she reported to the control desk, where Mr. Sinanian assigned her to check variances for approximately 6 items in Department 14, the sundries department. The sundries department runs along the back right side of the building near the Receiving Department. The sundries department includes items like paper towels, cleaning chemicals, laundry detergent, water, juice, and soda. Petitioner was assigned to research variances between the physical counts and the computer system’s counts for Swiffers, dog bones, dog beds, water, soda, and paper towels. During the August 2007 post-audit process there were at least 18 computers for the employees to use. The computers were located in the Receiving Department, the front office, at the membership desk, and at the podium on the front-end. Employees were free to use any available computer and were able to sit down at most of the computers while researching items. Petitioner never had to wait to use a computer. Petitioner went to whichever computer was closest to her at the time to verify items. After she finished researching all of the items on her variance sheet, Petitioner, like all of the other employees who worked post-audit, met with Mr. Sinanian at the control desk at the front of the store to explain her findings. There was a chair at the control desk for Petitioner to sit in while meeting with Sinanian. The process of meeting with Mr. Sinanian took anywhere from 10-to-30 minutes. Other than discussing her assignment for the day and the post-audit research results, Mr. Sinanian did not have any other discussions with Petitioner on August 27, 2007. Petitioner was able to use her discretion to sit down during post-audit. She was never told that she could not sit down nor was she reprimanded for sitting down. Petitioner admits that she used her discretion to sit down at least twice during post-audit and to kneel down a couple of times. Petitioner also took a 15-minute break during the post-audit process, during which she sat down. After Petitioner finished working post-audit at approximately 10:00 a.m. on August 27, 2007, she returned to the Receiving Department, but left shortly thereafter to take her lunch break. Petitioner’s lunch break lasted for approximately a half-hour. Petitioner walked from the back of the warehouse, where the Receiving Department is located, to the front of the warehouse, where the break room is located, to take her lunch and walked all the way back after the end of her break to return to work. After returning from lunch, Petitioner began working on the UPS shipment. It was a busy day in the Receiving Department, as the UPS shipment had arrived with approximately 72 packages stacked on one pallet that was taller than Petitioner. Because Petitioner felt unable to stand, she could not check in the entire UPS shipment. As a result, Petitioner took it upon herself to take the UPS invoices and input the invoices into Respondent’s computer system, which is one of the Receiving Secretary’s job responsibilities. At some point thereafter, Ms. Lenox asked Petitioner why she was logging in items into Respondent’s computer system, rather than receiving the UPS shipment. Petitioner told Ms. Lenox that her foot was hurting and that she could not stand. Ms. Lenox told Petitioner to take her break and, when she returned from break, they would see how Petitioner’s foot was feeling. Petitioner walked to the front of the warehouse, where she took her second 15-minute break in the break room. Petitioner was able to sit with her foot up during her break. After returning from her break, Petitioner reported to the Receiving Department and told Ms. Lenox that she did not feel she could not stand any longer that day. Petitioner asked if there was something she could do other than her receiving duties. Ms. Lenox told Petitioner that if she could not stand, then Ms. Lenox did not have any more work for her and told her that she should go home. Accordingly, Petitioner went home approximately one hour before her shift ended. Petitioner reported to work the following day, Tuesday, August 28, 2007, at 5:00 a.m. and worked her entire shift. At some point after her shift started that day, Petitioner told Mr. Sinanian that Ms. Lenox would not allow her to take a break during post-audit. Petitioner also told Mr. Sinanian that her foot was swollen and hurting. She took off her shoe to show him her foot. Mr. Sinanian did not see anything unusual about Petitioner’s foot. He did not see any swelling, graying, or a red bump. From the conversation with Petitioner, Mr. Sinanian did not understand that her foot was hurting due to a new injury. Therefore, Mr. Sinanian did not fill out an incident report. Petitioner’s and Mr. Sinanian’s conversation lasted approximately two minutes. At some point after speaking with Petitioner, Mr. Sinanian asked Ms. Lenox if, at any point during post-audit, she told Petitioner that Petitioner could not take a break. Ms. Lenox denied Petitioner’s allegation. Mr. Sinanian had no reason to doubt Ms. Lenox. Petitioner continued to work her job as Receiving Clerk after August 28, 2007. She continued to use her discretion to rest her foot on an as-needed basis. When possible she would sit in a chair to work. She used the electric pallet, letting her foot hang off the platform. Petitioner waited three weeks to seek medical treatment from her podiatrist in West Palm Beach, Florida. She finally saw her doctor on Monday, September 17, 2007. At her appointment, Petitioner’s podiatrist gave her a note that stated, “DUE TO ARTHRITIC CONDITION, CYNTHIA IS UNABLE TO STAND FOR LONG PERIODS OF TIME AND IT IS MEDICALLY NECESSARY FOR HER TO BE OFF HER FOOT FOR 3 WEEKS. DUE TO THE FLARE UP.” Petitioner understood that her podiatrist wanted her to stay off her foot for a few weeks and to be in a sedentary position during that time. Petitioner also understood that these temporary restrictions were more limiting than her prior permanent restrictions. Petitioner reported to work on September 18, 2007, and told Ms. Lenox that her doctor did not want her standing. Ms. Lenox told Petitioner that they would need to speak with Mr. Zook about her restrictions when he arrived at work that day. In the meantime, Ms. Lenox permitted Petitioner to sit down and work on summary sheets. After returning from lunch, Petitioner met with Mr. Zook about her new temporary restrictions. The meeting lasted about an hour or more. Based on Mr. Zook’s prior experience working as a Receiving Clerk, his understanding of the essential job functions of that position, and Petitioner’s podiatrist’s statement that she needed to be off her foot for three weeks, he did not believe that Petitioner could perform the essential functions of that position without violating her doctor’s restrictions. Mr. Zook, nevertheless, asked Petitioner how she thought she could do her job from a seated position. Petitioner did not have any suggestions. There were no available sedentary positions in the warehouse at that time that could have accommodated Petitioner’s no-standing restrictions. As a result, Mr. Zook explained to Petitioner that based on her doctor’s restrictions, which required her to be in a sedentary position, he did not have any work for her at that time. Mr. Zook did not believe that Petitioner’s temporary no-standing restrictions prevented her from working in any capacity. Mr. Zook explained to Petitioner that she could take a leave of absence and return to work after her temporary restrictions expired. Because Petitioner’s restrictions were temporary, Mr. Zook did not contact Respondent’s Human Resources Department to schedule a job accommodation meeting. Despite Mr. Zook’s statement, Petitioner returned to work the following day and performed some work for a period of time. After Mr. Zook arrived at the warehouse, he went back to the Receiving Department and asked Petitioner why she was at work. Mr. Zook reminded Petitioner that he did not have any work for her to do at that time and that he could not allow her to work in violation of her doctor’s restrictions. After speaking with Mr. Zook, Petitioner clocked out, signed some paperwork, and left the building. Petitioner did not return to work after September 19, 2007. On October 15, 2007, Petitioner saw her podiatrist again. Petitioner’s podiatrist extended her temporary no- standing restriction for another six weeks. Petitioner understood, however, that her no-standing restrictions remained temporary at that time. Petitioner applied for and received short-term disability (“STD”) benefits beginning around the end of September 2007. Petitioner used paid time off until the STD period benefits began.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter an order dismissing the Petitions for Relief in these consolidated cases. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2009. COPIES FURNISHED: Hnin N. Khaing, Esquire Henrichsen Siegel, PLLC 1648 Osceola Street Jacksonville, Florida 32204 Kathleen Mones, Esquire Seyfarth Shaw LLP 1545 Peachtree Street Northeast, Suite 700 Atlanta, Georgia 30309 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue for determination is whether Petitioner, Steven A. Ramunni, owner of Steven A. Ramunni, P.A., employed by the City of Moore Haven, Florida, as the part-time city attorney, is entitled to participate in the Florida Retirement System from November 25, 1986, through the present.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying in person and the documentary materials received in evidence, stipulations by the parties, evidentiary rulings made pursuant to Section 120.57, and the entire record compiled herein, the following relevant and material facts are found: The City of Moore Haven, Florida (City), is a Florida Municipal Corporation classified as a local agency and participates in the Florida Retirement System (FRS). The city attorney part-time position is established by Article IV of the City of Moore Haven Charter. The City has no legal department. The cost for legal services rendered by its part-time city attorney is included in the City's annual budget. Petitioner, Steven A. Ramunni (Mr. Ramunni), owner of Steven A. Ramunni, P.A., was hired November 25, 1986, as the City's part-time city attorney. His immediate supervisors are the mayor and the City Council of Moore Haven (City Council). Mr. Ramunni's primary legal duties consist of mandatory appearances at two regularly scheduled monthly meetings and attendance at special meetings at the discretion of the City Council. He performs the legal duties and services needed or required by the City Council. He represents the City in all litigation and official business. He provides legal advice/opinions to the mayor, the City Council, and to all city department heads. Mr. Ramunni, by virtue of a monthly retainer, is obligated to be available as needed by his retainer client on a daily basis, if necessary. The City provides administrative assistance to Mr. Ramunni when he is engaged in legal projects for the City. However, the City hires and supervises the administrative staff. Additionally, Mr. Ramunni has authority and does use his private law firm's administrative staff to assist him in performing legal services for the City. The City is billed separately from the monthly retainer agreement for other legal services. The City pays for those legal seminars attended by Mr. Ramunni that are related to local agencies as that term is defined in Subsection 121.021(52)(b). Mr. Ramunni is responsible for attending and making payment for additional seminars necessary to comply with mandatory Florida Bar requirements. Mr. Ramunni has held the position of part-time city attorney for the City and has continuously performed legal services as the part-time city attorney continually since November 25, 1986. There was no formal contract of employment entered into by Mr. Ramunni and the City on November 25, 1986, and no formal contract of employment presently exists. Reimbursement for legal services rendered to the City For attending City Council meetings twice a month, Mr. Ramunni is on a fixed monthly retainer. Other than attending the two monthly City Council meetings, Mr. Ramunni has no other established legal duties as the part-time city attorney. He is available and he does provide requested legal counsel and engages in litigation when needed only on those issues determined by the City Council and/or the mayor. Other than his fixed monthly retainer for attending City Council meetings, any and all other legal services performed for the City require additional compensation, billed by the hour, plus cost, to be paid to Mr. Ramunni. This hourly billing rate plus expenses is separate and apart from his fixed monthly retainer for attending City Council meetings as part- time city attorney. Reporting income paid Mr. Ramunni for services rendered Mr. Ramunni asserts that he has not received an Internal Revenue Service (IRS) Form 1099 or a Form W-2 reflecting annual compensation paid him by the City from November 25, 1986, to the present. The Department of Management Services, Division of Retirement's (the Agency), ERQ-1 form, dated October 3, 2002, question 15, page 3, completed with the assistance of Maxine Brantley, City Clerk, and submitted to the Agency, answered the question, "How did the worker report the earnings for income tax purposes?" to the contrary. Answering the above question regarding how monies paid to Mr. Ramunni are reported to state and federal agencies for income tax purposes, the ERQ-1 form confirms that the City does not report annual earned income payments made to Mr. Ramunni as "Wages" for income tax purposes by Form W-2. The City chose to report, and Mr. Ramunni acquiesced, annual earned income paid to Mr. Ramunni by the City as "self employed income" for tax purposes by using Form 1099. The City chose, and Mr. Ramunni acquiesced, not to withhold federal income taxes and federal social security deductions from Mr. Ramunni's payment for services rendered. The City chose, and Mr. Ramunni acquiesced, not to withhold medicare deductions from Mr. Ramunni's annual pay. The City chose, and Mr. Ramunni acquiesced, not to make matching contributions for Mr. Ramunni's federal social security or medicare payments. The City chose, and Mr. Ramunni acquiesced, not to provide statutorily required workers' compensation coverage for Mr. Ramunni. The City is insured by its Public Risk Management Self Insurance coverage, to include legal work performed on behalf of the City by Mr. Ramunni. This coverage is not insurance coverage for legal malpractice claims that may be made against Mr. Ramunni, personally. Mr. Ramunni maintains a law firm, Stevens A. Ramunni, P.A., with offices in LaBelle and Fort Myers, Florida, offering legal services to the general public. Mr. Ramunni does not have office equipment or office space on the City's premises. The City makes remittance of the monthly retainer and of fees charged by Mr. Ramunni to Steven A. Ramunni, P.A., and not Mr. Ramunni personally. The City's remittance checks are deposited in the Steven A. Ramunni, P.A., law firm's account and not Mr. Ramunni's personal banking account. Mr. Ramunni, at his sole discretion, uses the administrative staff of his private law firm to assist him with the City's legal projects. The cost for use of the administrative staff of his private law firm is an integrated portion of his hourly total billing totals to the City. Although Mr. Ramunni may terminate his independent relationship with the City as city attorney without personal financial liability, he continues to have a professional and ethical duty to assist in the transition of ongoing litigation to a new attorney. As part-time city attorney, Mr. Ramunni may not substitute another attorney to provide legal services assigned to him by the City without expressed authority and approval of the proposed new attorney from the City Council and the mayor. Based upon the Findings of Fact herein above, the evidence demonstrates that Mr. Ramunni's relationship as the part-time city attorney is not that of an "employee" of the City as that term is defined by rule of the Agency, for participation in the FRS. Based upon the Findings of Fact herein above, Mr. Ramunni has failed to prove that his part-time city attorney relationship with the City is and always has been an employer- employee relationship as that term is defined by rule of the Agency and that he is eligible for participation in the FRS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner's request to participate in the Florida Retirement System from November 25, 1986, through the present. DONE AND ENTERED this 3rd day of September, 2003, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 3rd day of September, 2003. COPIES FURNISHED: Steven A. Ramunni, Esquire Post Office Box 1118 LaBelle, Florida 33975 Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
Findings Of Fact The Orlando Police Department is organized on paramilitary lines and headed by a Director of Public Safety. Directly under him comes the Chief of Police who is the principal administrative officer of the department. His immediate staff which consists of 1 captain, 7 lieutenants, sergeants and patrolmen, includes an Administrative Aide who holds the rank of lieutenant and attends all staff meetings conducted by the Chief. In such position he is privy to all classified information received by the Chief and would appear to fit the definition of "confidential employee" under Section 447.02(5), Florida Statutes. Also in the Chief's Staff is a Research and Development Section and a Special Investigative Services Division. The former is headed by a lieutenant and is primarily responsible to research, develop and prepare all directives, regulations and general orders for the Department. The Special Investigative Services Division is headed by a Captain and contains an Internal Affairs Section, a Staff Inspection Section and an Intelligence Section, each headed by a lieutenant. The Internal Affairs Section handles all internal investigations of a confidential nature and monitors all disciplinary cases involving the police department. The staff Inspection Section conducts routine inspections of police units to insure compliance with guidelines and orders of the department. The Intelligence Section gathers information on organized crime and criminal acts on a larger scale than those routinely handled by the C.I.D. They interface with law enforcement agencies of the Federal government and keep the Chief apprised of developments. The Administrative Service Bureau is headed by a major and staffed with two captains, two lieutenants, 3 sergeants, seven patrolmen, sixteen civilians, cadets, and recruits for training. From this Bureau is assigned a patrolman as aide to the Mayor. This Aide attends all meetings involving the Mayor and the police department and is privy to all disciplinary actions within the police department that reach the attention of the Mayor. He also acts as courier between the Mayor and Police Department for confidential police records. Within the Administrative Services Bureau are numerous divisions and sections. The Personnel and Training Division handles personnel accounting, payroll records, training and records of personnel in detached service. Under this division is the Community Relations Section, Training Section and Personnel Section. The general function of the Community Relations Section is to handle public relations for the police department. This involves presentations at schools, civic associations, press releases, etc. The Training Section conducts recruit training and provides range the target practice ranges. Recruits are graded by the training officers, and these grades are based upon written exams given to all recruits. Similarly, the scores attained on the firing range are certified by the range officer and become part of the personnel record of the individual. The staff Support Bureau is headed by a major and includes two captains, one lieutenant, five sergeants, 14 patrolmen and 70 civilians. A forthcoming reorganization will reduce the number of patrolmen to two. Numerous divisions and sections come under the staff Support Bureau. In all of the above Bureaus, the personnel of which the City seeks to have excluded from the approved bargaining unit, the police officers generally wear civilian clothes and work a regular 40 hour workweek, 8:00 A.M. to 5:00 P.M., Monday through Friday. In this regard they differ from the uniformed personnel in the Field Operations Bureau who maintain personnel on duty 24 hours per day 7 days per week. The Field Operations Bureau contains the majority of the sworn officer personnel and is comprised of 1 major, 2 captains, 15 lieutenants, 44 sergeants and 285 patrolmen. In addition, there are 18 civilian positions consisting of secretarial personnel and parking meter attendants. A patrolman is assigned as aide to the major. He prepares written orders and letters put out by the major and reviews all disciplinary actions within the Bureau. One patrolman is assigned as court liaison and assists the State Attorney's office in scheduling witnesses and performing general liaison between the department and the State Attorney's office. The Field Operations Bureau consists of the Criminal Investigative Division (C.I.D.) and the Uniform Division. The former are plain clothed police officers divided into a youth section, vice section, crimes-again-person section, crimes-against-property section and the general assignment section. The latter encompasses the control section, jetport section, special operations section, and traffic section. Watches are maintained with 60-80 patrolmen assigned at one time who stand an 8-hour tour of duty with three watches assigned daily. Each watch has seven squads or sections with a sergeant in charge of each squad. The Detention Bureau has 1 lieutenant, 6 sergeants, and 61 civilians assigned. The sergeants work regular 8-hour shifts and review every arrest report to determine appropriateness and legality. One sergeant is responsible for the protection and custody of evidence in criminal cases and control of lost and found property. They supervise the performance of the assigned civilians. Since the duties and responsibilities of the various ranks are a necessary ingredient in the determination of their exclusion or inclusion in the appropriate bargaining unit, the evidence relating thereto will next be presented. Sergeants are the lowest rank the City contends should be excluded for the reason that there would be a conflict of interest between sergeants and patrolmen if they are in the same bargaining unit. Accordingly these duties and responsibilities will be first discussed. Sergeant's duties and responsibilities are generally contained in Section 100, Regulations of the Orlando Police Department Exhibit (7) which list them under Supervisory Members of the Department. Supervisors are therein described as employees having as one of their major responsibilities the general authority in the interest of the Orlando Police Department to direct other employees or members, to review grievances or the recommendations of such action, and to make effective recommendations regarding disciplinary matters, transfers, dismissals, etc. In carrying out their assignments sergeants prepare evaluation reports on patrolmen assigned under them. In order for patrolmen drawing specialist pay to continue to do so they must receive satisfactory performance ratings. Unfavorable efficiency reports affect eligibility for promotion exams and rank certification. Sergeants have authority to mete out punishment for minor transgressions. The highest level of punishment that can be awarded by a sergeant is a letter of censure which is placed in the personnel record of the recipient. The sergeant in charge of a patrol section prepares the zone assignment sheet (Ex. 31) wherein he assigns sectors and duties to the patrolmen in his section. In making these assignments independent judgment is exercised. In the event a patrolman reports out of uniform or is otherwise unprepared for assignment to duty the sergeant has the authority to relieve the man from duty without pay and send him home to get into proper uniform. Personnel requests such as transfers, leave, etc. are endorsed by those in the chain of command until they reach the approving authority. The sergeant's endorsement is effective in approving or disapproving the request. Sergeants can submit recommendations for commendation of the patrolmen under him. He also has authority to authorize up to one hour overtime without higher approval and to grant compensatory time off. Sergeants and above do not qualify for overtime pay. When the Lieutenant Watch Commander is absent from duty the senior sergeant assumes command and exercises the watch commander's authority. Sergeant's uniforms were changed from brown to white shirts in late 1974. At the same time they were authorized to discipline patrolmen for minor transgressions. Uniforms of lieutenants and above have consisted of white shirts for many years. On the other hand all members of the police force are paid at the same interval, have the same fringe benefits, all must maintain the same basic training standards, all are classified by the Civil Service System as "police officers", all are eligible for revenue sharing incentive pay from the State, all are paid from the wage classification plan, and all have the same powers of arrest. Article XIII of the Orange County PBA By-Laws provides for grievance procedures whereby a patrolman could file a grievance against a fellow member in the same union who disciplined the patrolman and seek to have the fellow member removed from the union. Art. XIII Section 2 provides: Any member of this association who voices criticism of another member, group of members or the association itself, without first seeking recourse through the provisions of Section 1 of this Article, shall be sub- ject to suspension of his membership, or ex- pulsion from the association..." This provision has not been exercised in the Orlando Police Department and the president of petitioner stated the interpretation of the bylaw provision is that grievance there refers to social rather than departmental action. Other members of petitioner testified that they didn't feel that membership in PBA would interfere with their carrying out duties that involved disciplining a fellow member of the PBA. With respect to those ranks above sergeant, little evidence was presented of specific duties and whether these duties required a finding that these officers are managerial employees. The general duties of these ranks were presented in Section 100, Exhibit 7. Furthermore, throughout the testimony was the clear import that majors had more authority and responsibility than captains who had more authority and responsibility than lieutenants who had more authority and responsibility than sergeants.
Recommendation In The Matter of City of Bridgeport (Police Department) and Bridgeport Local No. 1159, Selected Decisions [paragraph 49,868] the Connecticut Board held that the fact that sergeants, lieutenants, and captains of a city's police department exercised supervisory functions did not exclude them from the benefits of Connecticut's Municipal Employees Relations Act (MERA). Here these same officers had voted a year earlier not to be included in the overall bargaining unit and the Board appears to have affirmed the prior determination that the MERA did not preclude supervisory employees from being in the same bargaining unit as rank and file employees. The provisions of the MERA so construed does not appear in the decision. In Town of Stratford and Stratford Police Union, No. 407, 63 LRRN 1124 (1966) the Board determined that an election was proper for the captains and lieutenants to vote whether they wanted to be included in an overall police unit or to be separately represented by a unit of supervisors. The expressed policy of the Board in determining appropriate bargaining units is that the unit should be the broadest possible which will reflect a community of interest. At the same time it respects the special interests of certain groups of employees. I am not aware that such a policy has been announced by PERC. In the Matter of Borough of Rockway and Patrolmans Benevolent Association, Local 142, LLR paragraph 49,999 A.22 the New Jersey Board held that lieutenants and sergeants were properly included within a bargaining unit with patrolmen. The Board found that the lieutenants and sergeants lacked an authority to effectively hire, fire or discipline patrolmen. In the Matter of Kalamazoo Township and Lodge No. 98 F.O.P., L.L.R. paragraph 49,996.20 (1969) the Board held that although corporals had the authority to suspend patrolmen for breach of department duties this was always reviewed by higher authority; and since corporals were engaged in the exact same work as police patrolmen for the majority of their working time, they did not identify or align themselves with management. Therefore, they were not supervisors and were properly included within the proposed unit with the patrolmen. In accordance with Section 447.009(3)(a), Florida Statutes, no recommendations are submitted. DONE and ENTERED this 30th day of June, 1975. K. N. Ayers Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida
The Issue Whether respondent is guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Petitioner, Ann K. Hubert, is a thirty-five year old female. On February 4, 1992, she began employment with respondent, Darroch, Inc. d/b/a Dockside Imports (Dockside), as a part-time cashier at respondent's store in Newberry Square in Gainesville, Florida. After a promotion to a full-time position some six weeks later, she continued working until May 11, 1992, when she was terminated for what respondent says was poor job performance. Petitioner contends, however, that she was actually terminated because of her pregnancy. These contentions form the basis for this controversy. Dockside has a chain of retail stores selling items ranging in size from figurines to furniture. Each store has a manager, assistant manger, and an assistant to the assistant manager known as the first, second and third keys, respectively. In addition, each store employs stock clerks, usually males, to assist in the more physically demanding activities. Except on a few isolated occasions, at least two, and sometimes three, employees would be present in the store at any one time. During petitioner's tenure as a full-time employee at Dockside, she occupied the position of third key. All of the key positions were held by females. During her first days on the job as a part-time cashier, petitioner was described by her former manager, Betty Hill, as being a "go-getter," "wonderful," and "fantastic." Based on that performance, in March 1992 petitioner was promoted to third key, a full-time position. Within a short period of time, however, her work performance began deteriorating, and Hill began hearing complaints from virtually every other store employee concerning petitioner's performance and attitude. In addition, Hill had at least one customer personally lodge a complaint against petitioner. These complaints began before petitioner learned she was pregnant and continued until her termination. In March 1992, petitioner first suspected that she might be pregnant and she promptly advised Hill of her suspicions. Hill counseled her to make a doctor's appointment as soon as possible to confirm her pregnancy. This was done in early April 1992 and was reconfirmed "a couple of weeks later." After her second visit to the doctor, petitioner advised Hill that, pursuant to her doctor's orders, she could not lift items weighing more than fifteen to twenty pounds since she had suffered a miscarriage in 1977. Petitioner described Hill's reaction to her pregnancy as being positive, and that Hill "was pretty good about making sure that (she) didn't lift anything heavy." Indeed, Hill instructed the stock clerk that petitioner was to do no heavy lifting. Except for this precautionary measure, petitioner's job responsibilities were not changed. Before and after she discovered she was pregnant, petitioner's job duties included operating the cash register, waiting on customers, setting up stock, opening the store in the morning, helping customers carry items to their cars, cleaning, shelving, and the like. She was also responsible for moving small boxes from trucks to the stock room several times per week when shipments arrived. When heavy items required moving, the stock clerks were available to perform this task. Because the delivery of heavy items occurred infrequently and was known several days in advance, petitioner was not required to carry heavy furniture items from the truck to the store since extra persons could be scheduled to be on duty and perform that job. Hill's assistant, Elise Dees, came to work daily around 1:00 p. m. which was just before the end of petitioner's shift. Beginning in early March, Dees always found "nothing was done" by petitioner, including such tasks as shelving, cleaning the glass on tables and windows, vacuuming the floor and the like. In addition, petitioner would always complain she was not "feeling good." According to Dees, she found petitioner's job performance to be "unsatisfactory" at least three to four days per week. Dees also observed that petitioner was always sitting on a box at the back of the store rather than in the front area where she could assist customers. At hearing, petitioner says that she was forced to sit down due to dizziness caused by her pregnancy. In any event, Dees suggested petitioner sit on a bar stool by the cash register in the front of the store in order to be closer to the customers but petitioner declined to do so. During the week of May 4, 1992, petitioner took a previously scheduled one-week vacation to attend a wedding. While petitioner was on vacation, the district manager noticed that store morale and teamwork improved, and a "complete change" in the store environment occurred. Because of this, a decision was made to terminate petitioner immediately upon her return from vacation. It was decided that a demotion would not be practicable since this would not improve the decline in employee morale and teamwork if petitioner stayed in another position. When she returned to work on May 11, 1992, petitioner was met in the parking lot by Hill, who told her that she was being terminated effective immediately. Her position was filled that day by another individual whose gender is not of record. It is noted that petitioner was not dischargd because of a fetal protection policy, nor was she discharged because her pregnancy prevented her from performing her assigned tasks. Rather, she was terminated because of her poor work performance since early March 1992, including its negative impact on co-worker's morale and performance. Therefore, respondent did not commit an unlawful employment act in discharging petitioner. There was no evidence that Dockside had any previously articulated policy per se regarding pregnant employees, nor was there evidence that a similar situation had previously ever arisen. At the time of hearing, Dockside was employing at least one pregnant employee and was providing that employee the same type of accommodations offered petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 9th day of December, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1993. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Steven M. Scheck, Esquire 309 North East First Street Gainesville, Florida 32601-3338 Ms. Deborah Was 1155 South Semoran Boulevard Winter Park, Florida 32792
The Issue The issues in this matter are whether Respondent violated section 112.313(6), Florida Statutes (2013),1/ by obtaining funds from Orange County in the form of a severance payment while remaining employed as General Counsel for the Orange County Clerk of Courts; and, if so, the appropriate penalty.
Findings Of Fact Respondent, Stephan Carter, served as General Counsel for the Orange County Clerk of Courts (the “Clerk’s Office”) from June 2003 through April 1, 2014. Respondent was a public employee at all times material to this action. Respondent was personally hired by Lydia Gardner, the Orange County Clerk of Courts. In January 2005, Respondent and Ms. Gardner executed an employment contract (the “Employment Agreement”). The Employment Agreement was signed by Respondent and Ms. Gardner, in her capacity as the Clerk of Courts, on January 10, 2005, and January 13, 2005, respectively. The Employment Agreement, paragraph 6, entitled “Termination of Employment,” established that the Clerk would pay Respondent a fee should the Clerk terminate the Employment Agreement prior to its expiration date (the “Severance Payment”). Paragraph 6 specifically provided: The Clerk may declare this agreement terminated at any time. . . . The Clerk shall promptly pay to the General Counsel a sum equal to i) the salary and deferred compensation that is accrued but unpaid as of the date of the termination, plus ii) an amount equal to the pro rata portion of his salary for all accrued but unused leave time, plus, iii) an amount equal to the salary and deferred compensation that the General Counsel would have received during the 180 days immediately following the date such termination takes effect, as if this agreement had not been terminated. At the final hearing, Respondent explained that when he accepted the position of General Counsel (then titled “Legal Counsel”) with the Clerk’s Office in June 2003, he informed Ms. Gardner that he would only agree to work for the Clerk’s Office if he could be protected from losing his position. Therefore, Respondent sought and obtained the Severance Payment provision should he be terminated for any reason other than his voluntary resignation. The Employment Agreement provided that Respondent’s term of employment continued until January 6, 2009. On January 7, 2009, Respondent and Ms. Gardner entered a signed agreement wherein the Employment Agreement was “extended indefinitely.” On February 5, 2013, Respondent and Ms. Gardner signed a second amendment to the Employment Agreement.2/ This “clarification of terms” stated: [A]s to the definition of termination in paragraph 6, for the purposes of the contract, termination by the Clerk includes the ending of the employment relationship for any reason other than General Counsel’s voluntary resignation. The amendment also provided that an $11,000 annual payment into Respondent’s deferred compensation plan contained in the original Employment Agreement be considered compensation under Florida Administrative Code Rule 60S-6.001(15)(relating to pensions) and not a fringe benefit. In February 2013, Ms. Gardner became gravely ill. Ms. Gardner’s illness caused her to be absent from the Clerk’s Office. In Ms. Gardner’s absence, Colleen Reilly, the Chief Administrative Officer for the Clerk’s Office, assumed Ms. Gardner’s responsibilities. Ms. Reilly was hired in 2009. At that time, Respondent prepared an employment contract for Ms. Reilly modelled on his own Employment Agreement. In April 2013, Ms. Reilly approached Respondent to talk about their future employment with the Clerk’s Office. Ms. Gardner’s health was deteriorating. Respondent and Ms. Reilly discussed the impact of Ms. Gardner’s death on their positions. Ms. Reilly was also concerned whether the new Clerk of Courts would honor their Employment Agreements. Respondent and Ms. Reilly’s conversation led to a discussion regarding how they could protect the Severance Payments under their respective Employment Agreements. Respondent and Ms. Reilly considered several possibilities. One position was that their Employment Agreements would remain in effect upon Ms. Gardner's death, and they could ask the new Clerk of Courts to honor the payout terms. Respondent, however, determined that the Employment Agreements were not clear on whether he and Ms. Reilly were entitled to the Severance Payments following a change of administration. Therefore, they became concerned whether the new Clerk of Courts would be legally bound to honor the Severance Payments should he or she decide not to retain their services. Respondent, without seeking legal guidance or consulting with outside counsel for the Clerk’s Office, concluded that the Employment Agreements would terminate upon Ms. Gardner’s death. At the final hearing, Respondent explained that he considered his employment to be tied specifically to Ms. Gardner and not the Clerk's Office. Therefore, Respondent reasoned that because both he and Ms. Reilly were hired by and worked directly for Ms. Gardner, her death would terminate their contracts. This termination, of course, would also entitle Respondent (and Ms. Reilly) to the Severance Payment because his employment would have ended for a reason other than his voluntary resignation. Respondent and Ms. Reilly also discussed their plans once their Employment Agreements were terminated. Respondent informed Ms. Reilly that he believed that after the Employment Agreement was terminated, they could continue to work for the Clerk’s Office as “at-will” employees without employment contracts. Respondent encouraged Ms. Reilly to take her Severance Payment then stay in her position with the Clerk’s Office. He intended to do the same. Late in April 2013, Ms. Reilly informed Respondent that she was planning to visit Ms. Gardner, who was on convalescent leave at her home, to ask her to formally terminate the Employment Agreements and make them at-will employees of the Clerk’s Office. Respondent encouraged Ms. Reilly’s endeavor. Respondent then drafted two versions of a memorandum Ms. Gardner could sign to effectuate the termination of their contracts. Ms. Gardner, however, did not agree to terminate the Employment Agreements or sign the paperwork Respondent had prepared. Consequently, the Employment Agreements remained in effect. When Ms. Reilly was not able to obtain Ms. Gardner’s consent to terminate the Employment Agreements, Respondent began to consider Ms. Reilly’s authority to terminate his Employment Agreement. Respondent determined that Ms. Reilly could terminate his contract under section 28.09, Florida Statutes, and they could still receive the Severance Payments. Section 28.09 describes the appointment of a clerk ad interim in the case of a vacancy occurring in the office of a clerk by death. Section 28.09 states that the clerk ad interim “shall assume all the responsibilities [and] perform all the duties” of the clerk. Therefore, because Ms. Reilly would assume all the powers of Ms. Gardner, she would be authorized the terminate his Employment Agreement. Ms. Gardner passed away on May 8, 2013. On May 9, 2013, Ms. Reilly was officially appointed as Clerk Ad Interim for the Clerk’s Office. Also on May 9, 2013, Respondent and Ms. Reilly immediately took steps to obtain their respective Severance Payments. To effectuate their plan, Ms. Reilly promptly terminated both their Employment Agreements using her newfound authority as the interim Clerk. Respondent hoped that this step would remove any questions of their entitlement to the Severance Payment that might be raised by the new Clerk of Courts. Respondent then went directly to the Clerk’s Payroll office. There, he approached Tracy Gasinski, the payroll administrator for the Clerk’s Office. Respondent informed her that Ms. Reilly had approved him to receive a payout. Respondent declared that his payout was authorized because his Employment Agreement was terminated. Respondent also instructed Ms. Gasinski to pay Ms. Reilly’s payout under her Employment Agreement. Respondent stressed that he wanted both payouts processed immediately. Finally, Respondent advised Ms. Gasinski that nobody needed to know about the payout. Ms. Gasinski felt pressured by Respondent. However, based on his representation that Ms. Reilly had approved the payout, she immediately processed a final paycheck for Respondent (and Ms. Reilly), which included the Severance Payment provided in his Employment Agreement. Ms. Gasinski calculated a payout for Respondent in the gross amount of $110,290.61. This figure included a Severance Payment of $76,844.00. In addition, per his request, Respondent was also paid $27,822.10 for all his unused vacation leave (405.57 hours times a rate of $68.60), as well as $5,624.51 for his unused sick leave (327.96 hours times a rate of $17.15). Ms. Gasinski paid 25 percent of Respondent’s sick leave per Clerk’s Office policy. The next day, on May 10, 2013, Ms. Gasinski issued Respondent a check in the amount of $58,400.00 which was deposited directly into Respondent's personal bank account. Ms. Gasinski also deposited a final paycheck into Ms. Reilly's bank account. On or about May 20, 2013, however, Respondent returned to see Ms. Gasinski. He was not happy with his payout. Respondent told Ms. Gasinski that the amount she deposited was incorrect, and he was due more money. Respondent demanded several adjustments which would maximize his Severance Payment. First, referencing the February 5, 2013, amendment to his Employment Agreement, Respondent wanted the $11,000 he received as deferred compensation to be incorporated into his base salary thereby increasing his rate of pay. Second, Ms. Gasinski, in calculating Respondent’s Severance Payment, computed the final payout based on six month’s salary in accordance with the standard practice of the Clerk's Office. Respondent, however, insisted that his Severance Payment be calculated based on “180 days” as specifically stated in his Employment Agreement at paragraph 6. This mathematical adjustment increased Respondent's payout by including payment for all Saturdays and Sundays.3/ Third, Respondent demanded that he receive 100 percent payout for his remaining sick leave instead of just 25 percent as was the Clerk’s Office policy. Fourth, Respondent requested that 56 hours (7 days) be reserved in his vacation leave account and not paid out.4/ Following their meeting, Ms. Gasinski voided the initial payout check. However, she was not comfortable with Respondent’s request based on her understanding of employment contracts. Respondent's and Ms. Reilly's transactions were out of the ordinary course of business for the Clerk's Office. In her experience, final paychecks to Clerk’s Office employees were always accompanied by paperwork from the Clerk’s Office’s Talent Management division. This paperwork came in the form of an Employee Change Notice (“ECN”). However, Respondent did not produce, nor had Ms. Gasinski received, an ECN supporting Respondent’s payout. In Clerk’s Office accounting practices, Talent Management and the Payroll office act as a check and balance for each other. Typically, Talent Management initiates the paperwork, and then Payroll issues the checks. The normal process for a payout when a Clerk's Office employee leaves employment is for Talent Management to notify Ms. Gasinski who then processes the final payout. Respondent did not have the authority to direct Ms. Gasinski to issue the checks. Similarly, Ms. Gasinski did not have the authority to write checks to either Respondent or Ms. Reilly. Furthermore, a final payout upon termination is always via a paper check. Direct deposit to a personal bank account is never an option. The terminated employee picks up the paper check from Talent Management who verifies that the employee's garage pass and badge have been returned. Because of her discomfort with issuing Respondent’s payout check, Ms. Gasinski sought advice from her supervisor, Mike Murphy, the Chief Financial Officer for the Clerk’s Office. Mr. Murphy suggested that Ms. Gasinski contact Talent Management. On May 21, 2013, Ms. Gasinski spoke to Joann Gammichia, the Director of Talent Management, about Respondent’s request for a payout. When Ms. Gammichia learned of the situation, she had immediate concerns. First, Ms. Gammichia wondered why Payroll was issuing a check without any documentation from Talent Management such as an ECN. Ms. Gammichia testified that each employment activity requires completion of an ECN which acts as a recordkeeping system for the Clerk's Office. Because Respondent approached Ms. Gasinski in the Payroll office directly, no ECN or other written record was generated explaining why the Clerk’s Office was issuing the payout to Respondent. Ms. Gammichia explained that the policy of the Clerk’s Office is that payouts, severance checks, termination, or any kind of position change should only occur with an ECN in order to maintain and track the complete history of an employee's tenure with the Clerk's office. Ms. Gammichia also wondered why Respondent went directly to Ms. Gasinski with his demands. The normal starting point for employee changes begins with Talent Management, and the end of the line is financial services and Payroll. The fact that Respondent was attempting to verbally change his employment status in the Payroll office was “highly irregular.” Ms. Gammichia was also puzzled why the Clerk’s Office was issuing a severance payout on an employment contract when the employment was not ending. Consequently, Ms. Gammichia told Ms. Gasinski not to issue the adjusted payout check. Ms. Gasinski then notified Respondent via e-mail dated May 21, 2013, that she could not process the final payout until she received the proper documentation from Ms. Gammichia in Talent Management. Shortly thereafter, Respondent visited Ms. Gammichia’s office to inquire why she was involved in his payout matter. According to Ms. Gammichia, Respondent became “pretty aggressive.” Respondent told Ms. Gammichia that she had no authority or business being involved. It was a personal matter. Respondent warned Ms. Gammichia that she was directly violating an order from Ms. Reilly to make the Severance Payments. Ms. Gammichia informed Respondent that not only was she involved, but she was not authorizing the payout check to go through. Ms. Gammichia further advised Respondent not to contact Ms. Gasinski regarding the payout. Later that day, Ms. Gammichia contacted her supervisor, Cathi Balboa, the Director of Administrative Services for the Clerk’s Office, to discuss Respondent’s payout request. Ms. Gammichia relayed to Ms. Balboa that Ms. Gasinski was upset because she was being asked to prepare a large payout based only on verbal instructions without any supporting paperwork. At the final hearing, Ms. Balboa recalled that Respondent’s urgent request for a payout was highly irregular. Ms. Balboa relayed that the Clerk’s Office should not issue a final payout unless an employee was truly terminated from his or her position. Based on their concerns, Ms. Gammichia and Ms. Balboa called Ms. Reilly, who was sick at home, to confirm whether Ms. Reilly was aware of the payouts that Respondent said she had authorized. Ms. Gammichia also wanted to report the fact that Ms. Gasinski felt that she was being coerced and harassed by Respondent. Ms. Gammichia described Ms. Reilly’s reaction as hostile and negative. Ms. Reilly did not seem happy that others were involved. Ms. Reilly asked Ms. Balboa, “How did you get involved in this?" The next morning, on May 22, 2013, Ms. Reilly returned to the Clerk’s Office and called a meeting with Mr. Murphy, Ms. Balboa, and Respondent. Ms. Reilly opened the meeting by asking Mr. Murphy and Ms. Balboa "what do you think your role is in this organization," and "where do your loyalties lay?" Ms. Reilly then announced that “it was a private matter, it was their personal business, [and] to stay out of it." Ms. Balboa testified at the final hearing that Ms. Reilly intimidated her in their meeting. Mr. Murphy conveyed that he understood that they were not to get involved in the severance payout matter. After the meeting, Ms. Gasinski was told to proceed with the payouts for Respondent and Ms. Reilly. On May 23, 2013, Ms. Gasinski processed a second severance payout check for Respondent and Ms. Reilly. Ms. Gasinski prepared for Respondent a revised final paycheck in the total amount of $156,443.11. This amount included a Severance Payment of $106,387.20. Respondent was also paid $25,826.23 for his vacation leave (349.57 hours times a rate of $73.88), as well as $24,229.68 for all his unused sick leave (327.96 hours times a rate of $73.88). A check in the net amount of $99,125.45 was deposited in Respondent’s personal bank account. On May 23, 2013, Respondent repaid the initial payout of $58,400.00 to the Clerk’s Office by personal check. After Ms. Reilly terminated his Employment Agreement on May 9, 2013, Respondent never left his position with the Clerk’s Office. Respondent considered himself an at-will employee and continued to report to work as General Counsel. There was never any break in his employment. At no time did Respondent (or the Clerk’s Office) initiate or complete any paperwork to rehire Respondent after either Ms. Gardner’s death or Ms. Reilly terminated his Employment Agreement. No documentation was prepared transitioning Respondent from a contract employee to an at-will employee. Respondent continued to perform the same duties under the same terms, conditions, and compensation contained in the Employment Agreement as if he never left office.5/ At the final hearing, Respondent testified why his interpretation of his Employment Agreement justified his actions and motives. Respondent first remarked that his Employment Agreement was not typical for a Clerk’s Office employee. It contained certain provisions which were not to be “exposed generally,” such as the termination clause and the contact termination fee. Therefore, he desired to keep his employment terms quiet. Respondent further disclosed that he did not initiate an ECN because his Severance Payment was not a human resources issue, it was a matter of contract. Respondent also explained that at the end of 2008, when his Employment Agreement was nearing its initial termination date, Respondent became concerned with his future at the Clerk’s Office. He began to wonder what would happen if Ms. Gardner left her position as Clerk. Therefore, he prepared, then executed, the 2009 amendment to the Employment Agreement extending it “indefinitely.” In 2013, Respondent prepared, then executed, the second amendment clarifying the term “termination.” Regarding collecting his Severance Payment without leaving his position with the Clerk’s Office, Respondent contended that just because his Employment Agreement was terminated (thus, entitling him to the Severance Payment) did not mean he had to leave employment with the Clerk’s Office. Respondent characterized the payment as a “contract termination fee.” Therefore, he asserted that the Clerk could terminate his Employment Agreement without actually terminating him from his position as General Counsel. Consequently, nothing prevented him from becoming an at-will employee. Accordingly, when Ms. Reilly terminated the Employment Agreements on May 9, 2013, by exercising her prerogative as the interim Clerk, she also decided that both Respondent and she would stay on with the Clerk’s Office as at-will employees until the new Clerk of Courts determined what to do with them. In February 2014, the new Clerk of Courts, Eddie Fernandez, determined to initiate an investigation to review the propriety of the 2013 Severance Payments to Respondent and Ms. Reilly. On March 28, 2014, Respondent was placed on administrative leave with pay. On April 1, 2014, after the investigation recommended that Respondent’s employment be terminated, Respondent resigned from his position with the Clerk’s Office. As a condition of his resignation, Respondent was not eligible for rehire by the Clerk’s Office. Respondent reimbursed the full amount of the money that he received as the Severance Payment from the Clerk’s Office. Commenting on the circumstances of his resignation and restitution, at the final hearing, Respondent urged that he did not act dishonestly, but, maybe he exercised bad judgment. Respondent also proclaimed that he received his Severance Payment because the interim Clerk ordered it, not by reason of his actions or conduct. Therefore, he personally never violated any duty of his office. Based on the evidence and testimony presented during the final hearing, the competent substantial evidence in the record establishes, by clear and convincing evidence, that Respondent acted corruptly, with a wrongful intent, in seeking and obtaining the Severance Payment when he never intended to leave his public employment with the Clerk’s Office. Accordingly, the Advocate proved that Respondent violated section 112.313(6).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that Respondent, Steven Carter, violated section 112.313(6), Florida Statutes; and that Respondent be subject to public censure and reprimand. DONE AND ENTERED this 3rd day of January, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 3rd day of January, 2017.
The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race.
Findings Of Fact Petitioner is Leatharine Leon. She has been employed by Respondent, the Florida Department of Law Enforcement, for more than 13 years. In the fall of 1988, Petitioner was employed in the position of Criminal Justice Administrator. Petitioner supervised a section within the Crime Information Bureau. In October, 1988, Martha Wright, a white female, became the Bureau Chief of the Crime Information Bureau. After evaluating the needs and personnel of the Bureau, Wright consulted with other Respondent management personnel and began the implementation of organizational changes within the Bureau. On or about November 22, 1988, Wright notified Petitioner that she was to be reassigned to duties as an Administrative Assistant II. The position was specifically created to provide administrative support to the Bureau. Wright wanted Petitioner to accept the transfer voluntarily. After thinking overnight about the matter, Petitioner refused and the reassignment was made on an involuntary basis. Upon the expiration of a required 14 day notice period to Petitioner, Respondent effectuated the reassignment of Petitioner in the early part of December, 1988, to the administrative assistant position. Petitioner continued to enjoy her same salary and pay grade. As established by the Final Order of the PERC Commission in Case No. CS-89-238, Respondent's transfer to the Administrative Assistant II position was warranted, comported with procedural requirements and served a legitimate governmental interest. At the time of Wright's action transferring Petitioner, Wright had already determined to make other organizational changes to the Bureau. Subsequently, implementation of those changes resulted in the merger of two sections of the Bureau; the criminal history input section formerly headed by Petitioner, a black female, and the criminal history bureau section headed by a white female. The white female head of the criminal history bureau section, Judi Croney, became a unit supervisor within the new section and was given additional special projects. Iris Morgan, a senior management analyst employed in a position with a higher pay grade than that held by Petitioner, assumed Petitioner's previous supervisory duties. Further, Morgan assumed additional duties and responsibilities associated with determining the viability of the merger of the two bureau sections and then supervising the merger. Respondent's management wanted to continue a higher level manager position over the enlarged section resulting from the merger action. Wright envisioned that the new section supervisor position would require an individual adept at conceptual work, as opposed to operational management. Since she met all minimum qualifications for the position, Morgan was selected to continue as the new section head. Petitioner did not adapt well to her position as the Administrative Assistant II. She was unable to perform duties of the position in an independent fashion. Consequently, she received below satisfactory performance evaluations on March 28, 1989, May 2, 1989, June 1, 1989, and July 28, 1989. After the last unsatisfactory performance evaluation, Petitioner was demoted from the Administrative Assistant II position, a pay grade 18 position, to a technician position with a pay grade of 14. However, Petitioner's salary was not reduced and has not been reduced to date. After Petitioner was removed from the Administrative Assistant II position in July or August of 1989, the position was filled by Jerrie Bell, a black female, who is still employed in that position. Bell has performed satisfactorily in the position and has the ability to work independently without constant instruction and supervision. As a result of reorganization, supervisory positions were reduced from ten to seven positions within the Bureau. All other affected supervisors, a total of five individuals, were white. All but one of them voiced objection to Respondent's actions; however, none of the objections varied or prevented implementation of Respondent's proposed changes. Respondent does not have a work practice which discriminates with regard to compensation, conditions and privileges of employment on the basis of an employee's race. Further, Petitioner has not been subjected to such discrimination by Respondent.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this day of January, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4270 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS 1.-45. Adopted in substance, but not verbatim. 46.-48. Rejected as unnecessary to result. 49. Adopted by reference. PETITIONER'S PROPOSED FINDINGS None submitted. COPIES FURNISHED: Dana Baird, Esq.. Acting Executive Director Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Leatharine Leon 1751 Centerville Road Tallahassee, FL 32317 Elsa Lopez Whitehurst, Esq. P.O. Box 1489 Tallahassee, FL 32302 Clerk Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
