13-06541 - Department of Economic Opportunity

STATE OF TLORIDA
脚MISS■ ON
R■HMPLOIMttNT ASSISTAHCtt APPEALS C倒
R口A.A.G. Order NO. 13-06541
Referee Decュ
ORDER OF R口
即
LO―
NT ASSttSTANCB APPttS C―
工gs工 ON
s■on No. 13-47410U
NO. ■ コー06541
of an appeal of
This cause comes before the Commission for disposition
the decision of a reemployment assistance appeals referee pursuant to Section
The referee's decision stated that a
443.L51(4) (c), Florida Statutes.
request for review should specify any and aLl allegations
of erf,or with
decision,
of error not
respect to the referee's
and that allegations
specifically
set forth in the request for review may be considered waived.
a referee schedules a
Upon appeal of an examiner's determination,
hearing.
to the hearing that the hearing is their
Parties are advised prior
evidence in support of their
case.
to present all of their
only opportunity
The appeals referee has responsibifity
to develop the hearing record, weigh
the evidence, resolve conflicts
in the evj-dence, and render a decision
supported by competent and substantial
evidence.
$ection 443.151(4) (b)5.,
provides
in
Florida
Statutes,
that any part of the evidence may be received
written
and witnesses shall be made under
form, and al"I testimony
of parties
Irrelevant,
immaterial,
evidence shall be
oath.
or unduly repetitious
excl-uded, but all other evidence of a type commonly relied
upon by reasonably
prudent persons in the conducL of their
affairs
is admissible,
whether or not
Hearsay
such evidence would be admissible
in a trial
in state court.
or explaining
other
evi,dence may he used for the purpose of supplementing
evidence, or to support a finding
if it would be admissible over objection
in
actions.
Notwithstanding Section 120,57(L) (c), Florida Statutes,
civil
of fact if the party against whom it
hearsay evidence may support a finding
has a reasonable opportunity
to the
to review such evidence prior
is offered
r
e
f
e
r
e
e
a
f
t
e
r
or special deputy determines,
hearing and the appeals
alI relevant
facts and circurnstances,
considering
that the evidence is
and that the interests
of justice
trustworthy
and probative
are best served
by its admission into evidence.
to those matters that were
By Iaw. the Commission's review is limited
presented to the referee and are contained in the official
record.
A
by the Commission if the
cannot be overturned
decision
of an appeals referee
are supported by competent and substantial
referee's
material
findings
by
evidence and the decision comports with the legal standards established
The Commission cannot reweigh the evidence or
the Florida Legisl-ature.
evidence that a party could have reasonably been expected
consider additional
Addit.ionally,
it is the
to present to the referee during the hearing.
Page No.
R.A.A.C. Order No. l-3-06541-
responsibility
of the appeals referee to judge the credibility
of the
witnesses and to resolve conflicts in evidence, including testimonial
Absent extraordinary
circumstances, the Commission cannot
evidence.
resolution.
substitute its judgment and overturn a referee's conflict
Having considered all arguments raised on appeal- and having reviewed
the hearing record, the Commission concludes no legal basis exists to reopen
or supplement the record by the acceptance of any additional
evidence sent to
proceedings.
the Commission or to remand the case for further
The referee
made the
following
findings
of
fact;
worked
as
firefighter
for
a
The
claimant
a
city
municipality
from January
31, 2005 through
April
18,
2013. The cl-aimant filed
a lawsuit
against her employer
proceeded
of
and
a
trial
during
the
months
February [2012], and March t20121. During the trialr
orl
February 22, l20l2l,
the claimant contacted a co-worker,
a firefighter,
and toLd him that a l-ieutenant who was to
testify
during
the trial
better
thing
"say the right
while he's on the stand or else things will
come to light
about
inappropriate
advances or
sexual- advances. " The
firefighter
reported
the
claimant's
remarks
to
a
supervisor,
the head fire
chief.
The firefighter
was
witness
called
to
the
stand
during
the
trial
and
regarding
the
conversation
he had with
the
testified
claimant
regarding
the
Iieutenant
and
inappropriate
A
p
r
i
l
1
0
,
sexual advances. On
2013, the employer notified
the
cJaimant
of
its
intention
of
termination.
On
ApriI
If,
a predetermination
hearing
was held
for
the
claimant
to state her case to maintain
her employment. On
18, the employer emailed and senL by postal
April
mail a
written
decision
to terminate
the claimant's
employment.
The decision
to terminate
the claimant's
employment u/as
made by the head fire
chief
and the employee relations
director.
As noted above, the referee's
finding
that the trial
occurred in
February and March 2013 is corrected to reflect
the trial
occurred in
February and March 2012.
Modification
of the above finding,
however, does
not affect
the legal correctness
of the referee's
ultimate
decision.
On appeal to the Comrnission, the claimant
argues that she was
discharged from her position
in retal-iation
for filing
a sexual harassment
Iawsuit against her former employerBy contrast,
the referee concluded the
claimant was discharged
from her employment for threatening
to bring further
allegations
against the employer or its witnesses if the employer's witnesses
did not testify
during her civil- trial
in a way that was favorable to the
claimant.
Effectively,
the referee concluded the claimant was discharged for
proceeding.
witness tampering during the pendency of her civil
Consequently,
an evaluation
of this case requires a three-step
analysis:
first,
whether
the employer established
the claimant
engaged in witness tamperinq;
second,
whether the alleged witness tampering, rather than claimant's
filing
a
R.A.A.C. Order No, 13-06541
Page No.
3
and finally,
whether the
Iawsuit,
was the cause of her termination;
claimant's
alleged witness tampering, if it was the cause of her termination,
misconduct as the term is defined in section 443.036(30), Florida
constitutes
Statutes.
evidence
Before examining whether there was competent, substantial
findings,
the Commission must consider the argument
supporting
the referee's
that
raised by the employer helow, which was not addressed by the referee,
the claimant was barred from arguing that she did not engage in witness
trial.
Whether the claimant engaged
tampering during the course of her civil
Judge
addressed by United States District
in witness tampering was fully
Marcia G. Cooke, of the Southern District
of Florida,
in that court' s
March 26, 2013 *Otnnibus Order Regarding Defendant's Post-Trial
Motions",
appeals
during the reemplolment assistance
which was entered as an exhibit
hearing.
See Smart v. City of Miami Beach, Florida,
933 F. Supp. 2d 1366
(S.D. Fla. 2013) (published version).
After
the issue of witness tampering the
adducing evidence regarding
evidence overwhelming demonstrates that Ithe
DistricL
Court held "It]he
claimantl
and her mother atLempted to prevent and/or alter
of
the testimony
Firefighter
Daniel Kokoram and Lieutenant Charles Brown."
two witnesses:
Id. at L380. The court found as follows:
The record reveals that Ms. Smart attempted to intimidate
Brown into testifying
favorably
for her by
Lieutenant
threatening,
that
through Firefighter
Kokoram, to testify
Brown made inappropriate
Lieutenant
sexual advances
toward her and that he had'come on Lo her.'
ALso, Ms.
Kokoram directly.
Smart tampered with Firefighter
Once
Ms. $mart learned that. Firefighter
Kokoram was going to
regarding the threats made to
be called to testify
Lieutenant
Brown, via Firefighter
Kokoram, Ms. $mart
to telephone Firefighter
Kokoram herself
tried
during a
proceedings.
recess in the trial
brief
When the break in
concluded without having reached Firefighter
trial
Kokoram, Ms. Smart engaged her mother, Maria Cruz, to
place the call to Firefighter
Kokoram. Ms. Cruz began
Firefighter
Kokoram only 11 minutes after the
calling
tried
to reach him.
Ic]-aimantl unsuccessfully
findings
regarding
Id.
The court h/ent on to make several
the conduct of the
m
o
s
t
i
m
p
o
r
t
a
n
t
l
y
n
o
t
i
n
g
claimant's
mother,
that Ms. Cruz informed Firefighter
asked her to contact him,
Kokoram that the claimant
The court held that the
demonstrate that Ms. Smart and Ms. Cruz, in bad faith,
"facts
sought
clearly
to disrupt
by manipulating
and undermine the proceedings
Kokoram
Firefighter
into failing
and to have Firefighter
to appear for trial
Kokoram coerce
Lieutenant Brown into testifying
favorably
for the plaintiff."
Id. at 13Bl-.
The claimant's
counsel relied
upon several- cases to support his
could not be collaterally
argument that the claimant
estopped from arguing
during her reemployment assistance
appeals hearing that she did not engage in
witness tampering during her civil
trial
agai4st the ernployer.
All of the
the brief
supplied to the referee by claimant/ s
decisions cited within
R.A,A.C. Order No. 13…
06541
Page No
of the doctrine
of collateral
counsel pertain
to the application
estoppel in
proceedings held by differing
See Gl-idden v.
administrative
agencies.
Florida Unemplovment Appeals Commission, 91-'l So. 2d 1035 (FIa. 1st DCA
proceeding is
when the originating
2006) (estoppel by judgment is inapplicable
before the Public Employee Relations
Commission and the subsequent proceeding
is before an unemployment appeals referee);
Newberry v. Fla. Dept. of T,aw
(
F
l
a
.
estoppel is
Enforcement, 585 So. 2d 500
3d DCA 1991) (collateral
proceeding is before a hearing office
when the originating
inapplicable
is before the
appointed by a school board and the subsequent proceeding
Criminal Justice Standards and Training Commission); Walley v. F1a. Game A
Fresh Water Fish Comrnission, 501"So. 2d 6'71 (Fla. 1st DCA 1987) (collateral
proceeding is before the
en the originating
Criminal- ,Justice Standards and Training
Commission and the subsequent
proceeding is before the Career Service Commission); Fla. Dept. of Health &
Rehabilitative
Serv. v. Vernon, 379 So. 2d 683 (Fla. 2d DCA 1980) (collateral
proceeding is before the
when the originating
estoppel is inapplicable
Unemployment Appeals Coflmission and the subsequent proceeding is before the
Career Service Commission).
The Commission notes that the doctrine
of
applied
when two governmentalcollateral
estoppel
is not typically
in Florida
purposes.
administrative
agencies resolve the same set of facts for different
Because this case involves the application
of judicial
col-1ateral estoppel,
estoppel,
rather than administrative
cited by the
collateral
the authorities
claimant's
counsel are inapplicabl-e.
Furthermore, the factual- issue at
stake, whether the claimant tampered with witnesses,
is identicaf
in both
cases.
Therefore,
the Commission finds the arguments supplied by the
employer in support of the application
of collateral
estoppel to be more
persuasive in this case.
judgment was rendered by a federal
"Because the first
courtf
federal
principles
c
o
]
l
a
t
e
r
a
1
a
p
p
l
y
.
"
A
m
a
d
o
r
v
.
F
l
o
r
i
d
a
of
estoppel
Board of
R e g e n r s , 8 3 0 S o . 2 d 1 2 0| L 2 2 ( F l a . 3 d D C A 2 0 0 2 ) ( c i t i n g H o c h s t a d t v . O f a n g e
Broadcast, 588 So. 2d 51, 52 (FIa. 3d DCA 1991)) . As explained within Mo4sJ
v. BP Oil Co., 630 So. 2d 201 (FIa. 3d DCA1993):
L) the issue at stake is identical- to the one
litigation;
involved in the prior
2) the issue has been
p
r
i
o
r
actually
litigated
in the
suit;
3) the
of the issue in the prior
litigation
determination
was a
critical
and nece$sary part of the judgnent in the
action;1 and, 4) the party against whom the earlier
decision is asserted had a full
and fair opportunity
to
litigate
the issue in the early proceeding.
' The fact that the Motion for a New Trial- was granted as a contingency,
in
judgment as a matter of law was vacated or
case the Judge's Order granting
reversed, does not diminish the legaI weight of the portion
of the Order
which grant,s a new trial
based upon the claimant's
witness tampering.
Federal- Rule Of Civil
Procedure 50 (c) requires the trial
court, where a party
judgrnent
post*trial
motion for
makes a
as a matter of 1aw and a contingent
motion for new trial,
to rule on the contingent motion in the interest
of
judicial
economy. Thus, there is no question that the ruling
on the
was a "critical
and necessary" part of the
contingent motion for new trial
trial
court's order.
R.A.A.C. Order No. 13-06541
In R.D.J. Enterprises,
630 So. 2d at 209.
(Fra. 3d DCA 1992) ttre ffiedt
Page No.
Inc.
v. Mega Bank, 500 So. 2d 1,229
Any right, fact or matter in issue and directly
adjudicated, where necessarily involved in the
determination of an action before a competent court in
which a judgmenL or decree has been rendered upon the
merits is conclusively settled by the judgment therein
and cannot again be litigated
by the same parties and
whether the claim, demand, purpose or
their privies,
subiect matter of the two suits is the same or not.
600 So. 2d at 1232- While the claimant is coxrect that the federal district
court order did not consider the issue of misconduct as defined in the
Iaw, the factual
findings
of the federal
reemployment assistance
court
witness tampering are binding.
regarding the claimant's
Instead,
estoppel argument.
The referee did not address the collateral
independently
made factual
the referee
findings,
based on the same testimony
and likewise
offered at trial,
concluded that claimant engaged in witness
We conclude, as did District
.fudge Cooke, that the record
tampering.
contai-ns ample competent, substantial
that
evidence to support the finding
attempted to influence
the claimant
employees
the testimony
of the employer's
in which the employer was the defendant.
during a trial
contended during closing
The claimant
argument at the appeal hearing,
and contends in her appeal to the Commj-ssion, that the employer fired
her for
activity
of filing
a lawsuit rather than witness tampering.
the protected
The evidence she offers
to support this assertion,
other than the mere fact
that she was terminated after
was
filinq
a l-awsuit and testifying
at trial,.
that she was noL terminated
until
over a year after
her trial,
and that she
performance evaluations
received positive
in the interim.
Although the
address this argument, the referee's
referee did not explicitly
conclusion
that she was terminated for misconduct necessarily
rejects
this contention.
Because the issue of causation was properly
and
submitted to the referee,
competent, substantial
evidence supports the referee's
findings,
the
Commission may only reverse if the referee's
decision is not "in accord with
the e$sential
reguirements of the law."
FIa. Admin. Code. RuIe 738*
2 2 . 0 0 2( 3 ) .
Our review shows that the referee's
decision was consistent
with
VII.
Where parties
relevant precedent under Title
have taken actions
protected under Title
VII, but have also engaged in clearly
unprotected
with the protected activities,
conduct in conjunction
courts have routinely
rejected
fn some instances,
claims of retaliation.
courts have held that
supportinq protected activities
by engaging in unprotected activities
removes
the employee from the protection
provision:
of fitle
VII's
anti*retaliation
"under some circumstances,
an employee's conduct in gathering
or attempting
gather
to
evidence to support his charge may be so excessive and so
cal-cul-ated to inflict
needless economic hardship on the employer
deliberately
that the employee Loses the protection of [42 u.S.C. S2000e-3(a)], just as
civil
rights activities
lose the protection
other legitimate
of 142 U.S.C.
R.A.A.C. Order No. 13-06541
$2000e-3 (a) I when they
the employer."
Page No
progress
to
deliberate
and unlawful-
conduct
against
ilqtbqlc4! v, i{qqqeeleq Eq'lqde!+qr}{oq Erpeqiqelte.l Frqlqgy,
545 F.2d 222, 23l-*32 (1st Cir. l-976) (citing
I4q., 401 r. Supp. 66 (S.D.N.Y. 1975)).
E H O Cv .
Kallir,
Philips,
Ross,
of fact to determine whether the
More commonly, courts allow the trier
conduct, rather than the protected
conduct, motivated
unprotected
the
Whatley v. Metropolitan
employer's action.
Atlanta Rapid Transit Authority,
In such cases, where the employer
632 F.2d I325t 1,328*29 (Sth Cir. 1980).
has presented evidence that it discharged the employee for misconduct, rather
the employee must offer probative
evidence of
than for protected activity,
judgment
pretext
to avoid
as a matter of law.
probative
The claimant
did not introduce
sufficiently
evidence to
that the employer's act of discharging
establish
the claimant was on account
of her having opposed, complained of, or sought remedies for, unlawful
workplace discrimination.
Fgg 42 U.S.C. S2000e*3. It is clear that the
claimant engaged in a protected activity,
and that
the fiting
of a lawsuit,
her discharge.
she suffered an adverse job action,
The f,ecord, however,
Iacks proof that there was a causal connection between the two events.
Sqe
Pennington v. City of Huntsvill-e, 26I F.3d 1262, 7266 (l*l"th Cir. 2001) .
t'RecenLly the Supreme Court announced that TitIe
VII retaliation
claims
'
b
u
t
f
o
r
'
require proof that the desire to retaliate
was the
cause of the
FuIIer v. Edward B. Stimson Co., Inc.,
challenged employment action."
9'lI F.
Supp. 2d 11-46(S.D. Fla. 2013) f.
Medical- Center v. Nassar, 133 S. Ct. 25L7 (20L3)).
In this case, the claimant did not offer
sufficient
evidence of pretext
finding
in
favor,
to support a
its
much less to compel the referee
to reject
The filing
the employer's stated grounds.
or
of a civil
rights
lawsuit,
an
initiation
of the preliminary
steps of such an action,
does not insulate
employee from the logical
repercussions
of inappropriate
conduct at the
workplace, towards their
employer or towards their
co-workers.
No reasonable
inference can be made that the claimant's
engagement in a protected activity
was the "but-for"
causation of her termination.
To the contrary,
the record
indicates
that but*for
the claimant's
witness tampering the employer would
her services.
have retained
The fact that the employer waited until- the
District
Court rendered a decision on the claimant's
actj-ons during the trial
before taking an adverse job action does not show pretext.
the
Similarly,
job performance during that
fact that the employer eval-uated the claimant's
time solely on her job performance, without penalizing
her for the witness
tampering the employer bel-ieved she engaged in, only demonsLrates prudence on
the part of the employer, raLher than maliceThis evidence supports,
rather
than undermines, the employer's contentions,
because if the employer had
wanted to retaliate
against the claimant for filing
a lawsuit and testifying
in it,
the employer did not need to wait over a year after
to do
the trial
so.
Vfith the issue of whether the claimant
engaged in witness tampering
judge, the employer was entirely
properly
submitted to the trial
reasonable
the District
in waiting until
Court had rendered a decision before
determining
whether claimant had engaged in misconduct during the trial
and
taking disciplinary
action accordingly.
R.A.A口
C. Order No, 13…
06541
Page No.
The Eighth Circuit
scenario in
Court of Appeals addressed a similar
'lI!
F.3d BB3 (Bth Cir. 201"3). The employer in
Brown v. City of Jacksonvillet
activity,
that case discharged the plaintiff
after
she engaged in a protected
of a complaint with the Equal Employnent Opportunity
Commission.
the filing
pressured two employees to
inappropriately
The court found that the plaintiff
provide confidential
information
711 F.3d at 893about the investigation,
The court affirmed
summary judgment in the employer's
94.
favor on the
retaliation
claim noting:
claimant's
VII is a shield to protect
Title
employees from
retaliation
e
x
e
r
c
i
s
i
n
g
right
to challenqe
for
their
by fiting
treatment
EEOC complaints
and
discriminatory
charges.
It is not a cudqel to be wielded by
and unprofessional
employees to prevent
underperforming
justified,
employment termination.
non*discriminatory
Id.
Ultimately, the referee's decision reflects he too did not believe
claimant was discharged for engaging in a protected activity.
the
Finally,
the Conmission addresses the issue of whether the claimant's
witness tampering constitutes
misconduct under the reemployment assistance
Iaw.
The referee correctly
determined that the claimant's
conduct
(
a) of the
misconduct within
s
u
b
p
a
r
a
g
r
a
p
h
constituted
m
e
a
n
i
n
g
o
f
the
*'demonstrating
definition
statutory
of misconduct,
as conduct
conscious
disreqard
and as a t'del-iberate
violat.ion
of an employerf s interest"
or
disregard
of the reasonable standards of behavior which the employer expects
The Commission notes that whil-e the claimant's
of his or her employee."
actions during the federal civil
were not actions "aL the workplace or
trial
during work hours", the 2011- version of the reemployment assistance law,
applicabl-e to this case, does not require misconduct to occur on the job.
The Commission notes that the claimant
had representation
during the
appeal-s hearing.
Section 443-041,(2)(a), Florida Statutes, provides that a
representative
for any individual
claiming benefits
in any proceeding before
the Department of Economic Opportunity
shall not receive a fee for such
services
unless the amount of the fee is approved by the Department.
The
was charging the claimant
issue of whether the claimant's
representative
a
fee for his representation
during the appeals hearing was not addressed by
representative
the appeals referee.
Therefore,
the claimantfs
is not
entitled
of the claimant before the Office
to any fees for his representation
such time as he f,equests such a fee from the appeals referee
of Appeals until
and said fee request is approved by the appeals referee.
The refereers
decision is affirmed.
The claimant is disqualified
receipt
of benefits.
The cl-aimant has been overpaid $550 in benefits.
It
is
so ordered.
ASSISTANCE APPEALS COMMISSION
REEMPT,OYI{ENT
Frank E. Brown, Chairman
Thomas D. Epsky, Member
,"TosephD. Finneqan, Member
from
R.A.A.C. Order No, 13-06541
Page No.
This is to certify
that on
12/23/2013
the above Order was filed
in the office
of the Clerk of the Reemployment
Assistance Appeals Commission, and a copy
mailed to the last known address of each
party.
interested
By:
Kady Thomas
Deputy Clerk
I
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Docket No.201H7410U
APPEARANCES:CLAIMANT&EMPLOYER
LOCAL OFFlCE挙
:3677‐0
IIECISION OF APPAALS REFEREH
Important eppeal
rrc expl$ined at the end of thie decision.
"ightl
Derechosde apelacidnimportantc$ Bonexplicador al final de e#r decisldn.
Yo eksplike klk dwe drpdl en$trn lrn fen dedzyon sn a.
Ircuef,Invohed:
SEPAMTION: Whetherthe claimantnrrasdischargedfor miruondustsonnecbdwith wodr or voluntarily left wo*
without good causeas definedin tre stfltuto,pur$rantto Ssctions443.101(1),(9), (10), (ll);4a3.036(30), Flodda
Stntutes;
Rule738-11.02OFloridaAdminisnrtiveCode.
OVERPAYMENT:\Uhcdterthe claimnntreaeivedbenefitsto which ths claimmt wns not entitled,fid if so, ufrefher
those benefits rrc subject to being recoveredor rccoupedby the Departnrerq pursuantto Sestion aa3.l5l(6);
443.011(7'),443.1115;
443.1t17,FloridaStrtuhsand20 CFR615.t.
D●●k●tN●.
2013‐
47410U
Pnge? of5
Findingt of Frrtl fre claimantrvorkedasa firefighterfor a city municipalityfrom January31,2005,thtuugh
April 18,2013. The claimnntfiled a lawzuitagainsthenemplopr and a trial proceededduringthe monthsof
February2013,andtvlarch2013. Druingthe tial, on February22,2013,theclainsnt contacteda co-worker,a
who wasto testiff duing th fiial bettor'o$ay
fuefig[rtor,andtold him thata lieutemant
the right tring while he's
or sexualadvances."The firefightet
on the standor elsethingswill co'meto light aboutinappopriateadvances
reportedthe claimant'sremadrsto his supewisor,the headft,e chief. Ttn firefightu wss call€dto the witness
standdrrringthe tial andtestifiedregardingthe conversstionhe hadwith the claimantregsrdingthe lieutenant
and iuappr,opriate
ssxualadvsnces.On April 10, 2013,the ernployernotified the claimantof its intentionof
termination. On April 17, 2013, a predeterminntion
hearingutasheld for the claimailt to stflt&her caseto
maintainher enrployment.On April lE, the employer€rnailedmd sentby postalmail a wdtbn dpcisionto
terminsfiethe claimant'semplolmrenLThe decisionto temrinntethe claimant'semploynentwasmadeby the
headfire chiefandthe employeedatioru dirtctor.
Theclaimant'sweeHybenefitamountumsestablished
as$275.Theclaimarrtreceivedbenefitstotaling$550for
theweeksendingMay 4, 2013,throrrsbMay I l, 2013.
Concluslonof Lrw: As of June27,2011,the Reemployment
AssistanceLaw of Floridadefinesmisconduct
connectd with work fls, but is not limited to, the fo[ondng"which may not be construsdin pari rnateriawith
eachother:
(a) Condrct denrousftfltinsconsciousdismegsrd
of an employer'sintercstsand formd to be a deliberate
violetion or disrcgardof the reasonsblestandardsof behaviorwtrichthe employerexpectsof his or her
employee.
(b) Carelessness
or negligunceto a degreeor recrurencethat mffiifests culpability,or wrongful inten! or
showsan intentionalandsubstantialdisregrudof the enrployer'siuterestor of the employee'sdutiesand
obligdionsto his or heremployer.
(c) Chnonicabsenteeism
or tardinessin deliberdoviolation of a known policy of the employeror ons or
more rmflpprovedabeencesfollowing a uritterr rep,rinrrtndor warning relating to more than one
unappmvedabsence.
(d) A willful anddelibErare
violationof a standsrdor regulationof this stateby anemployeeof anemployer
licensedor certifiedby this stf,te,whic,hviolationwould cflu$ethe employerto be sanctioned
or haveits
licenseor certificationsuspended
by this state.
(e) A violationof anunployer'srule,unlessths clsimantcandemonsfrdethat:
l. He or shedid not knou andcouldnot rcasonablyknow,of thenrlesrequirements;
2- Therule is not laufirl or not reasonablyrelntedto thejob environmentandperformance;
or
3. Tberule is not fairly or oonsistenflyenforced,
Therecordreflectsthat the claimarrtwasterminated The recordshowsthe employer'switness,the firefighter
the claimantspokeon the phoneon February22,2012,did not f,ttffid thehearing.Theeuryloyerumsunableto
providefirst-handtestimonyregardingths conversation
betrveenthe claimantandthe witness.Heorsryevid€rrce
maytre usedfor tlre puposeof nrpplernenting
or explainirrgottrerervidence,
or ts supporta findingif it woutdbe
admissible
overobjectionhcivil actions.Notwith*urdings. 120.5(l[c), trearsay
evidence
maysrrpporte findingof
fsctif:
l.
The party sgain$twhom it is offeredhasa reasonable
opeortwity to reviewsuchevidencefior to the
heuing;ard
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2013・ 47410U
3 off
Paep
Th€rypealsr€feffieor specialeprily detcnnine+afur conrideringall rclwantfrcts ild cirttnnstmces,
tbd
2.
jusicc
is tnrstworttryand probqtiveard thd th intrrestsof
ue best scnrcdby its admissioninh
tlrc evide,lrce
evid€nce,
While the witnessdid not attendthehcaring,the enployersubmitteda seriesof doctmrents
for thehearing.The
arc
transcripfi$
doouments
of
the
witness's
shows
these
tcstimony
regaidfurg
record
his conversationwith thc
claimanton February22,2012, in the court proceedingin which occurredbetrrem Febnraryand lv{archof
2012. The recold showsthe claimantreceivedthe documentsprior to the heatiog. The refcres finds the
documentsto be tustworthy andpmbative. Accodingly, the ernployer'shearsayevidenceis ableto supporta
findine of fact"
The employerwasablEto Frrovidecompctenfsubstantialevidencettr* the claimanttold a fitefighter,who she
knew wus frie'ndswith a witnessu*ro wa.sgoing to te$iry the following dsy, that the wihressbetter"$ay the
right thing while he's on the standor elsethings will cometo light aboutinap'propriate
advancesor sexual
advances."At thd point, the employerestablishedprimfl facie evidenceof misconduct Whenan employer
pdmnfacie evidenceof miscondrrct,
the burdenshifu to the employeetiocomeforwardwith proof
estflbli$hes
of the pruprietyof that conduct AltermanTransprt Lincs,hw. v. UnemploynentAppealsConnrisslbn,410
So.Zd568 (Fla. l'r DCA 1982). The burdenof proof in an employeedischargematteris initially upon the
employerto pove misconftrc't.SeeDonnell v. UniversityCommunttyHosp'705 So.2d l03l (Fla 2d DCA
1998). Whenthe employermeetsthst initial burden,the enrployeeis requiredto demonsfiate
the proprietyof
his/heractions. Sw Slnrtf of MonraeCountyv. Urwmployntenl
AppealsCommlssion,
490 So.2d 961 (Fla. 3d
DCA 1986). Wbenquestionedin the hearing,fre claimantdenfudmakingthosestatements.The courtshave
held that direct evidenceof intent is rare snd must be proventhroug! the sunoundingcircumstances.Whsn
consideringthe circrmstfltrcesof the instantcase,the refereecan rcasonablyinfer the claimantintentionally
threatenedto bring chargesagahst the eiuployerif tlre employer'switnessdid not testiff in a way ilrat was
favorableto the claimant. The claimant'saction$constitr*ea conscionsviolation of the employer'sinterrsts
of behnviortheemployerhastheright to expectof an employer.
anda deliberateviolationof the standnrds
The hearingoffics waspresentodwith conflicting testimonyregardingmaterialissuesof fact and is chnrged
with resolviry theseconflicts. The ReenryloynentAssistanceAppealsCommissionspt forth fartors to be
considerd in rcsolvingcredibilityquestions.The$Eincludethc witrpss' opportunityandcapacityto obseryethe
event ot apt in questiorgany prior inconsistentstflternentby the witress; witnessbias or lack of bias; the
confiadictionof tlrc witness'versionof eventsby otlrer cvidenccor its consistencywith other evidence;the
inherentimprobabilityof the witness'vemionof everrts;and the witress' demeanor.Upon consideringthese
fsptors,the hearingofficer frnds the testimonyof the employerto be more credible.Therefors,material
conflictsin the widenceareresolvedin favorofthe employer.
Thelaw povidce that a claimantwho wasnot entitledto b€f,efitsreceivedmu$trepeythe overpaidbenefitsto
the Deportment.The law doeenot pernrit waiver of recoveryof overpayrr.ents.Sincethe claimantis held
disqualifiedduringweekswhenbenefitswprereceive4theclaimantis overpaid.
Ilecision: The det€lminationdatedMay 22, 2013,is AFFIRMED. The cleimentis disqunlifiedfor the receip
of benefitsfrom April 14,2013,thmughApril 13,2020,anduntil nheearns$4,675.Thectairnantis overpaid"
Dccirlonl Thedeterminationdatedlvlty 22,2013,is AFFIRMED.
町 格舟N●,
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2013-47410U
If this decisiondisqualififfi and/orholdsth€ clainant ineligiblefor benefie alreadyreceived"the claimentwill
be requircdto repay those ben€,fits.The specific amormtof any over?ayment\ilitl be calculatedby the
unlessspecifiedin this decision.However,
de,parffientand $etforth in f, sepsrateoverpflymcntdeterminatiotr,
decision
is as shownaboveand is not stopped,delayedor extendedby any
the time to requestrwiew of this
decisionor otder.
otherdetermination,
This is to ccrtiff tlrat a copy of the abovedecisionwus
msiled to the la$t known addressof eachintutsted party
onJuly9,2013.
MATTHEW YAGER
APPealS Referee
IMFDRTANT r APPEAL RIGHT$r This decisionwill becornefinal unles$a written reqrrestfor rcview or
reopeningis filed within 20 calendardaysafterthe ruailingdateSoum. If the 20mdayis a Saturday,Sundayor
holiday definedin FA.C. 738-21.004,filing may be madeon the next day that is not a $atrrrdanSundayor
holiday. If this decisiondisqrnlifies and/orholds thc clairnantineligihle for benefitsaheadyrec+ived,the
clairuantwill bs requiredto r€psythosebenefits.Thespecificamountof anyoverpaymerrt
will be caloulatedhy
the Departnentandsetforth in a separate
ov€rpa)frlentdeteminmion However,the time to requestreviewof
thigdecisionis asshownbelowandis not stopped"dclayedor extutdpdby unyotherdeterminntion,
decisionor
order.
A party who did not fttcnd the hearingfor goodcflurc mf,y requet reopeningincluding
the reasonfor not {ttendingrat httns;l/ian,floridaiobc.ons/
or by writing to the addressat
the top of this decirion. The date the confirmetionnumber is generatedwill be the liling
date of a rcqucstfor reopcningon the Appeds Web $lte.
A paffy ufio attendedthe lmaring and receivedm advene decisionmay file a rsquestfor review to the
ReemployrnentAssistsnc€Appeols Commissiorr,Suite 101 Rhyne Building, 2740 CentenrielyDrive,
Tallabassee,
Floridn 323994151; (Fer: 850-488-2123);httnr://ranqirn.floridaiobs.ors/,If mailed, the
posffiark drte will bethe filing dste.If faxa{ handdeliverc{ deliveredby courierserviceotherthantheUnited
StatesPostalService,ot submittsdvia the Internet,the dateof receip will b€ tbe filing date.To avoid delay,
includethe docketnumberandclaimant'ssocialsefl$ity number.A psrty requestingreviewshouldspecifr any
and all nllegntionsof ermr with rrtpoc.tto the r€f€rte's depisios,andpnovidefactualand/orlegal supportfor
thesechallenges.Allegationsof error not specificallyset forft in the rcquestfor rcview may be considcred
waived.
IMPORTAITITE- IIERECIIOS DE APELACIdN: Esu decisidnpasarda se'rfinal a menosqueunnsolicitud
por ercritopararuvisidno reflperturf,seregisffedenhode ?0 dtasde cale,ndario
despuds
de la fechamsficsdaen
quele decisidnfue runitida por coileo. Si el vigdsimo(20) dIaesrn sf,bado,un domingoo un feriadodefinidos
en F.A.C. 738-21-004,el registo de la solicitld sepuederealizflt en el dia siguientequeno seaun $6bado,un
domingoo un fEriado.Si ests decisi6ndescalificay/o declaranl rpclqmantecomo inelegiblepara recibir
beneficiosqueya fuetonrecibidospor el reclamante,
sele requerirdal reclamante
rembol$aresosbe,neficios.
La
csntidadespec{ficade crralquiersobrcpagofpego ercesivode heneftcios]serAcalculadapor ls Agenciay
establmidasn unadeterminnpidn
dc pagoexcesivode beneficiosque mrd emitidflpor separado.Sin emborgo,
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2013‐ 47410U
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y dicho lfmite
el lfmite de tie,mpoparasolicitarla rcvisidnde esc dscisidnescomoseestrbleceanteriormente
no esdetenido,dcmoradoo extendidopor ningunaota detffminaoidn"decisidnu orrden.
la razdn
Unapare quef,o asisti6a la arrdienciapor unabuenscausapuedesolicitarunarcapertura,incluye,ndo
por no habercompnrecido
o escribiendoa la direcci6nen la parte
en la audienciqen httos://iap.floridaiobs.ore/
superiordeestadecisidn.I.a fechaEnqups€g€ilrcrael nrimerode confirmacidnserrf,la fechade rcgistrode una
solicitd dercaperturarealizfldaenel $itio Webdela OficinadeApelaciones.
puederegisrar unasolicitudde revisidncon
Unnpartequeasistida la audienciay recibidunadecisidnadrrersq
la Comisidnde Apelacionesde Desempleo;ReemploymertAs$istanceAppealsCornmission,Suitel0l Rhyne
Building, n4A Ce,nte,rviewDrive, Tallahassee, Florida 323994151; (Far(: 85F488t123);
httos://rmclnp.floridriobs.orq/. $i la soliciurdesenviadapor coffco,la feclrsdel sellodela oficinnde coneos
ser* la fechsde regisnode la solicitud.Si esenviadapor telefflL enregadaa mnno,enhegadapor serviciode
mensajed4con la excepci6ndel Se,ryicioPostalde EstadosUnidros,o rcalizadnvia el Internet,ln fechaen ln
queserecibela solicitudserf ln fechadc rcgisfro.ParaevitardemorqincluyaeI nfimerode expedienteldocket
numberly el nfimerode segurosocial del reclamante.Unn part€ que solicita "na revisidn debeespecificar
cualquieray todo$los aleg$osde ermrconnespcsto
a la decisidndel 6rbitro,y prspotcionarfirndanentosrcales
y/o legnlespotasubstanciar
Los
6stosdemffos.
alegarosde enor queno seestsbleucsn
con especificidaden la
considerarse
solicitd de rwisi6n puede,n
comorenunciados.
ENPOTAN * IIWA DlPtLr Desizyonsaa ap definitif sdf si ou depozeyon apdlnanyon deti ?0jou apred*
nou postesa a ba ou. $i 2ptm jou n seyon samdi,yon dimanchosrlfl yon jou konje,jan ra defini lan F.A,C.
738-21.004,depoan kapabfEtjou aFntq si sepa yon sanndi,you dimanchoswayonjou konje. Si desizyonan
diskalifre epi/oswadeklarcnolm k ap ft demannlan pa kaliffe pou alokssyonli resevwadeja,morurk ap fe
demannlan ap getrpou li rcmit lajanli te rescvwaa- SeAjanslan k ap kalkile montann€n$t ki pemananplis
epi y ap detdminesalan yon desizyonsepar€.SepandaAdel&poumanderevizyondesiz,yon
s&fl s€deldyo bay
snwos; Okennldt det+minflsyon,
desiryonoswaldd paka rete,retde oubyenpwolonjedntsaa.
Yon pnti ki te genyon reuonvalabpou li pat asistes€yanslan gorrdwa mandepou yo ouvri kn a ankd;f0k yo
bayrtmn yo pnt ka vini an spi ft demannrumsousitwdbsa4 httog:lliap.floddajobs.orsl
oswaalekri nanadrts
ki manryoneokomansmandetizyon sa a Dat yo pwodui nimewo konfimasyonan se va dat yo prezante
demsnnnanpoureormi kdz la mu Sitrr&bApSlle
Yon pati ki te asisteseyansl" eprki pnt mtisft desiryonyo te prar-ran gendwa mnndeyon revizyonftm men
ReemploymentAssistanceAppeals Commission Suite l0l Rhyne Buildiug; 2740 Centerview Drive,
Tallahnssee,
Floridn 3?3994151;(Fe'r: 850488-2123); httpm//raacirn.floridaiobs.orsl.Si ou voye I pa
lapds,dnt ki soutenbls sp dflt ou depozeap$lla. Si ou depozeq*l la souyon sftweb,ou fakscli, bay li men
nanlamen,oswnvoyeli payon sevismesajriki pa SBvisLap$sLBaerazini{United StatesPostalSerul:ce),
osnm
voyeli pa EntlndLdat ki souresi I seva dat depoa. Pouevitereta"metenimeworejis la (dockntnumber)avEk
nimewo sekiritc sosyalmsutl k ap f0 demannlan. Yon pf,ti k ap manderwizyon dwe presizenenpbtki
alegasyon61$rrsnkad desizyonabit ls, epi haybazrcydl oubyenlegalpou apiyealegasyonsByo, Yo p apprarr
ankonsidcrasyon
alegasyon€r+ki pabysnprcsizenm d€roasnpoureviryon an"
Any qucstiomrcl#d b berncfibor clalmcc*ificuions shouldbercfc*rcdto theChimn InfonnntionCcntcrat 1.800-?04-Z4tt.An cqual
opportunltyflplopr/program. Auilhry aidsandncwicrsareavailablcuponruqucstto individualswith disebilitie$.Voiceelepbonc
nrrmbere
on this documcffrneybo mnhed by 6rsons usfu4TTY/TDD equipmrntvia thc FloridaRclay$rrrviccat 7l l.