Judges: MARY CLARK
Agency: Commissions
Latest Update: May 21, 1987
Summary: The issue for determination in this case is whether Respondent violated Chapter 760, Florida Statutes, as alleged, by its refusal to allow Petitioner to rescind a resignation.No discrimination found where employer did not permit employee to rescind a written resignation after resign was accepted.
86-2737.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ARDIE COLLINS, )
)
Petitioner, )
)
vs. ) Case No. 86-2737
)
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Final hearing in the above-styled action was held in Rockledge, Florida, on February 27, 1987, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.
The parties were represented as follows:
For Petitioner: Leon Daniel Watts, P.A.
Post Office Box 6566
443 South Park Avenue Titusville, Florida 32782-6566
For Respondent: T. Whitney Strickland, Jr., Esquire
103 North Gadsden Street Tallahassee, Florida 32301
BACKGROUND AND PROCEDURAL MATTERS
On June 7, 1983, Ardie Collins filed a complaint with the Florida Commission on Human Relations (FCHR) alleging discrimination by the Department of Professional Regulation (DPR) on the basis of her race (Black), sex (Female) and "other" (retaliation).
The complaint was investigated by Commission staff, and on June 24, 1986, the Commission issued its Notice of Determination: No Cause. In response, Ardie Collins filed her Petition for Relief on July 23, 1986. The case was referred to the Division of Administrative Hearings for formal hearing pursuant to section 120.57, Florida Statutes.
The case was initially set for hearing on October 27, 1986, but was continued at the request of Respondent.
On February 10, 1987, Respondent filed its Answer to the Petition and a Motion for Summary Judgment and Judgment on the Pleadings, based on a claim that the Petition was barred by a two-year statute of limitations. At the hearing Petitioner made an ore tenus motion, in the nature of a motion to strike,
directed toward the answer and alleging that it was not timely filed. For reasons more fully explained in the conclusions of law, both parties' motions are denied.
At the final hearing nine witnesses were presented by the parties and twelve exhibits were admitted, all without objection. In addition, the testimony of James H. Kirkland, former DPR Personnel Director, was submitted, by stipulation, through two depositions dated October 31, 1986 and February 10, 1987. The depositions are marked as Joint Exhibit #1 and #2, respectively.
Both parties submitted proposed recommended orders and Respondent filed written argument entitled "Trial Brief". These have been considered in the preparation of this recommended order and specific rulings on the proposed findings of fact are found in the attached appendix.
ISSUE
The issue for determination in this case is whether Respondent violated Chapter 760, Florida Statutes, as alleged, by its refusal to allow Petitioner to rescind a resignation.
FINDINGS OF FACT
Ardie Collins, a Black female, lives in Rockledge, Florida, and is currently self-employed as a beauty salon owner. She began working for the State of Florida in 1973, as a salon inspector with the Cosmetology Board. She maintained her title of investigator and continued employment after reorganization with the Department of Occupational and Professional Regulation and the Department of Professional Regulation (DPR), as the agency is now known. During the relevant period Ms. Collins worked out of the DPR Regional Office in Orlando.
In August 1982, Ms. Collins was terminated by DPR. The case went to arbitration, and by order of the arbitrator dated December 17, 1982, she was reinstated with full back pay. She reported back to work on February 10, 1983.
In January 1983, before she reported back to work Ms. Collins went to see the AFSME union representative, Eric Tait, in Cocoa. The union had represented her in the 1982 proceeding and Tait had assisted the union.
In that January meeting, two letters were drafted, later typed by a clerk and signed by Ms. Collins. These letters were characterized by both Ms. Collins and Eric Tait as "intent to resign" and a letter of resignation. The "intent to resign" is dated, in error, January 12, 1982, and is addressed to Howard Kirkland, Personnel Officer. It provides,
This is to inform you that it is my intention to submit my resignation from State Employment, effective June 6, 1983.
This resignation is now held by Eric D. Tait, AFSME President, Local 3040.
(Petitioner's Exhibit #2)
The second letter is dated June 6, 1983, is also addressed to Howard Kirkland, and provides:
Kindly accept this as my resignation as Investigator with the Department of Professional Regulation effective June 6, 1983.
The Department of Professional Regulation has informed me that as of June 6, 1983 I will have completed 10 years creditable service in the Florida Retirement System.
(Petitioner's Exhibit #11)
The first letter was mailed to DPR in Tallahassee and the second was held by Eric Tait.
The January 12th letter was stamped received in the DPR Personnel office on January 24, 1983. Howard Kirkland took this letter to be a resignation. He discussed it with the Division Director and with the Assistant Secretary and was authorized to accept the resignation. He then sent a letter to Ardie Collins, dated January 25, 1983, stating:
Please be advised that we have accepted your resignation from employment with this agency effective June 6, 1983.
(Petitioner's Exhibit # 3)
Later, on January 31, 1983, in response to a contact from Eric Tait, James Kirkland sent a letter to Ms. Collins explaining that, if necessary, her date of resignation would be extended to insure that she had the necessary ten years of creditable service.
DPR commenced advertisement and recruitment to fill the anticipated vacancy.
Sometime in early May 1983, Eric Tait mailed the second letter dated June 6, 1983. The letter was stamped received in the DPR Office of Personnel on May 5, 1983.
On May 6, 1983, Ms. Collins wrote to Howard Kirkland informing him:
Notice is hereby given that proposed or intended resignation is cancelled until further notice.
(Petitioner's Exhibit #7)
Between January and May, DPR received no word from Ms. Collins or her representative about her resignation.
Kirkland again discussed the matter with his supervisor and responded by letter to Ms. Collins dated May 25, 1983, that her voluntary resignation had already been accepted in good faith. (Petitioner's Exhibit #8)
There is no written policy or rule at DPR regarding the rescinding of resignations. The agency follows the general personnel management principle
that until the resignation is accepted, withdrawal is negotiable; after acceptance, withdrawal is solely within management prerogative. Generally it is considered bad personnel management to permit an employee to rescind a resignation once it is accepted, and in particular, once the position is advertised.
Ms. Collins claims that DPR has allowed other employees, white males and females, and black males, to rescind resignations. In his personal knowledge, and after reviewing DPR personnel files, James Kirkland found one individual who was allowed to rescind a resignation - a clerk, who had given probably only an oral notice and shortly later asked to withdraw it. In that case, nothing had been done to act on the resignation.
The individuals named by Ms. Collins: Robert Fleming, Edward Bludworth, and Will Merrill, were not allowed to rescind resignations. Rather, they each reapplied after leaving DPR. Each was hired again on probationary status.
Ms. Collins claims that she reapplied by mail to DPR sometime in late June 1983. However, neither the Tallahassee office nor the Orlando regional office have a record of her application. If she had reapplied for a vacant position, she would have been considered with the rest of the applicants.
DPR has received resignations from employees in a variety of forms and in various ways. Sometimes resignations are submitted directly to an immediate supervisor; other times they are directed to the personnel officer. It is not uncommon to have a resignation expressed as an "intent to resign".
DPR acted in good faith and consistent with established personnel practices when it accepted Ms. Collins' letter dated January 12th as a resignation and when it refused to allow her to rescind that resignation when requested some four months later.
DPR determined that Ms. Collins had obtained her ten years of service as of June 6, 1983. This was the only condition regarding her date of resignation of which it was on notice. The agency received both the "intent to resign" and the "resignation" letter prior to receiving Ms. Collins' "cancellation". The agency simply ratified its acceptance in its response to Ms. Collins.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding. Section 120.57(1), Florida Statutes, Rule 22T- 8.016(2), Florida Administrative Code.
The Florida Department of Professional Regulation is an employer within the meaning of section 760.02(6) , Florida Statutes.
Section 760.10(10), Florida Statutes provides that any person aggrieved by a violation of that section of the Human Rights Act of 1977 may file a complaint with the commission within 180 days of the alleged violation. Rule 22T-9.008(1), Florida Administrative Code provides that the complainant may file a petition for relief from an unlawful employment practice within thirty days of service of a notice of determination, no reasonable cause. These deadlines were clearly met by Ms. Collins. (See Background statement regarding the sequence and timing of pleadings). The statute of limitations cited by Respondent and the cases applying that statute relate to civil actions, and not to administrative actions brought under chapters 120 and 760, Florida Statutes.
Respondent's Motion for Summary Judgment and for Judgment on the Pleadings is, therefore, DENIED.
Petitioner's motion based on the pleadings and administrative rules for failure to file an answer within 20 days of service of the petition, as provided in 22T-9.08(4), is DENIED, on the authority of Arnold v. Burger Queen Systems, Inc., 8 Fla. Admin. Law Reports, page 3606, Final Order entered May 2, 1986.
Petitioner has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Texas Department of Community Affairs v. Burdine, 450 US 248, 67 L. Ed. 2nd 207, 101 S. Ct. 1089 (1981)
Not one fragment of evidence was presented to prove that Petitioner was treated any differently than other DPR employees, black or white, male or female, similarly situated.
No evidence was produced to prove that DPR retaliated against Ms. Collins because she opposed an unlawful employment practice or because she participated in any manner in an investigation, proceeding or hearing under section 760.10, Florida Statutes.
DPR's acceptance of what it reasonably interpreted as a resignation, and its refusal to allow Ms. Collins to withdraw the resignation, were based upon legitimate nondiscriminatory reasons.
It is, therefore RECOMMENDED:
That a Final Order be entered dismissing the Petition for Relief.
DONE and RECOMMENDED this 21st day of May, 1987, in Tallahassee, Florida.
MARY CLARK
Hearing Officer
Division of Administrative Hearings 2009 Apalachee Parkway
The Oakland Building Tallahassee, Florida 32301
(904) 488 9675
FILED with the Clerk of the Division of Administrative Hearings this 21st day of May, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2737
The following constitute my specific rulings on the proposed findings of fact submitted by the parties.
PETITIONER'S PROPOSED FINDINGS OF FACT
Adopted in substance in paragraph #1 and 2.
Adopted in substance in paragraph #3.
Adopted in paragraph #2.
Adopted in paragraph #3, as to the fact that Ms. Collins met with Mr. Tait in January 1983, otherwise rejected as unnecessary.
Adopted in substance in paragraph #3.
Adopted in paragraph #4.
Rejected as immaterial.
Adopted in paragraph #4.
9 through 11. Rejected as irrelevant.
12 through 14. Adopted in paragraph #5.
Rejected as irrelevant to Ms. Collins' claims against DPR.
Rejected as cumulative.
Rejected as immaterial.
Rejected as cumulative and unnecessary.
19 through 22. Rejected as immaterial.
23. Rejected as contrary to the weight of evidence.
RESPONDENT'S PROPOSED FINDINGS OF FACT
Adopted in paragraph #1.
Adopted in paragraph #2.
3 through 5. Adopted in paragraph #3.
6. Rejected as immaterial.
7 through 11. Adopted in paragraph #4.
12 and 13. Adopted in paragraph #5.
14 and 15. Adopted in substance in paragraph #9.
16. Adopted in paragraph #6.
17 through 19. Adopted in paragraph #17.
Rejected as unnecessary.
Adopted in paragraph #8.
COPIES FURNISHED:
T. Whitney Strickland, Jr., Esquire
130 North Gadsden Street Tallahassee, Florida 32301
Leon Daniel Watts, P.A. Post Office Box 6566
443 South Park Avenue Titusville, Florida 32782-6566
Donald A. Griffin Executive Director Florida Commission on
Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32399-1925
Dana Baird General Counsel
Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32399-1925
Docket for Case No: 86-002737
Orders for Case No: 86-002737
| Issue Date |
Document |
Summary |
|
Sep. 09, 1987 |
Agency Final Order
|
|
|
May 21, 1987 |
Recommended Order
|
No discrimination found where employer did not permit employee to rescind a written resignation after resign was accepted.
|
