vs. ) CASE NO. 76-1024
Respondent. )
This cause came on for hearing before the Division of Administrative Hearings duly designated Hearing Officer, James E. Bradwell, on July 23 and August 11, 1976, in Ft. Lauderdale, Florida.
For Petitioner: Charles H. Vaughan, Esquire
1109 East Las Olas Boulevard Ft. Lauderdale, Florida 33301
For Respondent: Douglas E. Whitney, Esquire
The Petitioner appeals the suspension of his employment from the Division of Youth Services, where he is employed presently as a youth counselor II, intake unit. He was suspended without pay during the period July 29, 1975 through August 22, 1975. The stated reasons for the disciplinary action taken against him, which initially resulted in his termination were "willful violation of rules, regulations, or policies." The termination was ultimately reduced to a suspension without pay for 19 work days. In general, the issue raised by the pleadings was whether Respondent unlawfully violated its personnel rules and regulations by suspending the Petitioner for the dates mentioned. The Respondent denied that the suspension here was in violation of its personnel rules but rather, resulted based on Petitioner's willful violation of its rules, regulations or policies. Upon the entire record, upon my observation of the witnesses and their demeanor while testifying, and upon careful consideration of the arguments made by the parties, 1/ I make the following:
A. Introduction
Briefly this case concerns itself with the measures taken by Respondent to effectuate its suspension of petitioner without pay during July 29, 1975, 2/ through August 22. The suspension letter dated August 8, advises the Petitioner that the disciplinary action taken against him was based on information
furnished him in a letter dated July 29, 1975. (See joint exhibit #1 received and made a part hereof by reference). In essence the July 29th letter indicated that based on the results of a meeting held in Hanni's office numerous incidents involving alleged willful violations of agency rules, regulations and policies were reviewed and that while Petitioner was aware of such rules, regulations and policies, because of philosophical differences, he circumvented them. Present at that meeting on Respondent's behalf were William Clark, Pat DeNoyer, Joe Davis, Grace Scarberry and Petitioner. The Letter advised that although he received a satisfactory performance evaluation effective February 23, 1975, during that evaluation period he engaged in numerous violations of agency rules, regulations and policies. Specifically, the letter referred to an incident wherein he altered a form, DYS143, which changed the recommendation for issuance of a petition to a recommendation of no petition. That alteration, as the letter reads, was made after the supervisor had initially approved the original recommendation for issuance of a petition. This, as the letter alleges, was without the supervisor's attention and/or recommendation. The July 29th letter also indicates other instances in which pre-dispositional reports were not completed prior to court hearings on approximately three occasions and that he was issued an oral reprimand for using profanity in speaking to a neighbor who was known to Petitioner as a former DYS client on July 14; that he violated DYS rules by authorizing the release of a child from detention in violation of a judge's "hold-in-custody" order and against the judge's express wishes and instructions; that he did not notify a court psychologist of the change of a hearing date from July 16 to July 10 even though he had full knowledge that the psychologist had done a court ordered evaluation which was standard procedure which resulted in violation of State Department of Health and Rehabilitative Services, Division of Youth Services Employee Rules of Conduct and Guidelines for disciplinary action, offense no. 24, in willful violation of rules and regulations of policy. For engaging in the conduct as alleged, Petitioner was dismissed from his employment effective 5:00 P.M., July 28, 1975. During a telephone conversation on August 8, Petitioner was advised by Hanni that his supervisors had reviewed the circumstances surrounding his termination on July 28, and based on further review, it was felt that the disciplinary action taken against him resulting in termination should be reduced to a suspension without pay. Thus the initial termination was reduced to a suspension effective July 29.
The Petitioner, Warren F. Shaw, holds a B.S. Degree from Florida Atlantic University and was initially employed by Respondent in June, 1973. He received permanent status in August, 1974, and was placed in the intake unit. He was initially hired by T. Waldren and was placed in Grace Scarberry's unit after she (Scarberry) had been a supervisor for approximately five months. During the time that he was employed in Mrs. Scarberry's unit, he submitted two transfer requests. When Petitioner returned to work on August 22, he was evaluated by Mrs. Scarberry on August 26 and at that time he was placed on conditional status. On that date, Mrs. Scarberry explained to Mr. Shaw the reasons why his performance was rated conditional (allegedly due to his inclination to circumvent established procedures and policies in critical areas). The letter of explanation indicated that during the early portion of his rating, he performed within satisfactory limits, however, during the latter period there was a general decline in his overall performance. It went on to state that he (Shaw) found it difficult to meet acceptable standards of
performance in the areas of dependability, relationships with people, quality of work and adequate utilization of his job knowledge. It cited one occasion when he failed to place vital social information in a PDR which was allegedly "known to him" and pointed out to his supervisor resulting in an unnecessary court continuance and detention for a child. Further it cited an incident wherein
another child was released from detention in violation of a court order. Also mentioned were his critical attitude regarding his relationship with people including the clerical and professional staff and clients which had been the subject of an earlier oral reprimand. See Appellant's Exhibit #2, received and made a part hereof by reference.
Grace Scarberry, a camp specialist of District 10, HRS, since June 30, 1976, was initially hired in September, 1972 as a youth counselor II. Sometime during late March, 1974,she was made supervisor for youth counselors and was assigned to supervise the Petitioner sometime during September, 1974. Essentially intake counselors receive referral applications from policemen by juvenile offenders. During June 1975, the Division of Youth Services established a unit to handle juvenile matters at the Broward County Courthouse. A PDR is a summary of arrests records, impact forces, family background and generally data relative to how a child fits into his family. It is used to assist the presiding judge on the disposition of juvenile offenders. Mrs. Scarberry testified that standard rules and regulations require counselors to submit PDR's prior to the court hearing absent extraordinary circumstances.
Mrs. Scarberry related the incident regarding the alleged alteration of an order by the Petitioner wherein he recommended that a petition be filed in a case which she approved and that Petitioner thereafter changed the recommendation.
When the change was discovered, she counseled Petitioner. She expressed her knowledge and familiarity with the disciplinary procedures and testified that on July 22 she evaluated the Petitioner as being a satisfactory employee. She also related other instances wherein PDR's were not filed prior to the hearing and circumstances wherein social files contained inaccurate and incomplete material. She also indicated the problem regarding the lateness in which the Petitioner submitted files which normally should be completed approximately two to three days after a judge's order is entered and received. For this alleged infraction, Petitioner was asked to write a memo explaining his lateness in filing reports and in that memo he replied that such was occasioned by his heavy case load and other pressing matters. Scarberry also related the incident wherein Petitioner allegedly violated a judge's holding order by releasing a child who was ordered to be retained until he was transferred to a drug program. She testified that Petitioner explained that the judge had ordered the youth released on the date in which the release occurred. She requested that Petitioner file a memo explaining his actions regarding the release whereupon she explained to him that although he violated the rules, no disciplinary action would be taken.
Frank William Schueler, a police information officer for Ft. Lauderdale, testified that his son is the subject of the Petitioner's alleged violation of the judge's "hole-in-custody" order. He was somewhat vague in his testimony but generally indicated that he was of the opinion that the Petitioner followed the judge's order in releasing his son.
H. Squier Hanni, Regional Director for the Division of Youth Services during times material, testified that he terminated Petitioner on July 29, 1975. He testified that on or about July 16, he along with Petitioner, Mrs. Scarberry, DeNoyer and others, during a meeting determined the basis for the charges. At that meeting, Mrs. Scarberry stated that the Petitioner circumvented rules, policies and procedures whereupon he reviewed the reports of his work in certain cases. A further meeting was held on July 28 and at that meeting, Petitioner, according to him, wanted the matter ended. Accordingly, the allegations were read to him and he responded that they were ridiculous. When the allegations were read to him, Petitioner indicated that he followed the rules and regulations and in certain instances wherein there was a departure, he should be
compared to Kennedy and other employees who had not consistently followed procedures as they were "standardized". Thereafter, Petitioner was excused from the room and the parties jointly agreed that he was guilty as alleged and various options were discussed among them. One option discussed was to have Petitioner placed in the conditional status for approximately 30 to 45 days.
That option was not utilized and they decided to terminate him. On or about August 8 the dismissal was substituted for a suspension based on consultation with Art Adams, Personnel Director for the Division of Youth Services, who persisted that the action warranted suspension rather than termination. He explained to Hanni that attitude should not be an operative factor in a disciplinary action. On cross examination, he testified that he was aware of no other employee who had been reprimanded for the conduct allegedly engaged in by the Petitioner and that he did not point out to Petitioner when specifically requested by him, the rules and regulations which he allegedly violated. He admitted that philosophical differences without question played a factor in his reasons for dismissing the Petitioner. He further admitted that Petitioner requested to be transferred to another unit and he refused.
Joe Davis, Staff Developmental Trainer-Consultant since April 15 testified that he was aware of the Petitioner's alleged violation of a hold-in- custory order which was stated as one of the reasons for his separation. He spoke to the judge who indicated that the order was predated to prevent Petitioner from "getting into trouble". Pat DeNoyer, a Program Specialist, testified that she prepared a list of all employees who were to attend training meetings. Petitioner was not included on the list to attend training meetings in her opinion due to a clerical mistake. (See Exhibit A, received and made a part hereof by reference). She related the problems regarding social file discrepancies and admitted that no corrective action was taken to correct this problem and further that there were discrepancies in almost all of the files that were reviewed. She failed to recall having voiced this to Petitioner or indicating that he should institute some corrective action to see that the discrepancies did not continuously occur in social files. She admits to having received two transfer requests from Petitioner and was aware of his special evaluation in which he was rated above satisfactory on June 17, 1976. She expressed the opinion that Tom Waldren is an experienced supervisor.
Jean Tillman, a District Intake Specialist, also related the problems regarding social file discrepancies. She recalled that verbal requests for corrective actions regarding the social file discrepancies were made by Mr. W.
H. Clark. She indicated that the social files were considered late if they were not presented by 8:00 A.M. on the day prior to the court hearing. Several employees testified, including James Robinson, Kate Woodby, and Betty A. Conrad who was employed through January 31, 1976 as an employee in the VISTA program which was then connected with DYS. She testified that Petitioner went over and above his call of duty by assisting her and performing special counselling for the VISTA program.
Tom Waldren, a youth counselor supervisor and the person who originally hired the Petitioner, testified that he rated Petitioner above satisfactory. He also indicated that it was not uncommon for interchanges to occur verbally at times when a social file was not timely presented.
Ronald Nelson, a youth counselor since approximately April of 1972, testified that he has known Petitioner for approximately three years. He has worked along with Petitioner on numerous felony cases and indicated that he and Petitioner have been criticized for handling judicial cases. He worked very
closely with the Petitioner since July of 1975 and would rate his work performance above satisfactory.
Shaw testified that he submitted the two transfer requests because of the philosophical differences that he and Mrs. Scarberry had. He related his being placed on conditional status when he returned to work on August 26, 1975, and at that time he requested that he be transferred. He indicated that on or about July 28 the problem of PDR's was raised for the first time and he admits that he had been orally spoken to about the lateness in which he filed PDR's. In explaining his conduct surrounding the change in the recommendation, he indicated that he first made the recommendation to Scarberry that a recommendation be filed in the case. He testified that he was asked to go see the then assistant state attorney, John King, who was not in at the time. Upon reflection of the matter, he changed his recommendation and the matter was
brought to King's attention who did not file a petition. He testified that this change in the recommendation centered around the fact that is was a sex case involving two neighbors who were, in his opinion, being vindictive. He spoke to Scarberry about the change sometime in January. He indicated that he was baffled by Scarberry's continuous indication that while he was being orally reprimanded, the reprimands continuously turned up in his personnel file.
Regarding his alleged failure to have a court psychologist present, he explained that court psychologists were not needed in all cases and that he was unaware of any rule that required the presence of a court psychologist in the cases such as the particular case in question.
As regards the alleged violation of the judge's "hold-in-custody" order, Petitioner testified that when he spoke to the judge, he concurred with his disposition of this matter. Specifically, he testified that he called the drug program to see if the subject juvenile could be expedited into the drug program. Upon learning that the juvenile could be expedited into the drug program, he released him to the father, and he was then placed in a "hold- release" situation. During his exit interview, Petitioner testified that Hanni related the problems which essentially were his dissatisfaction with the philosophical differences existing between he and Scarberry. He talked to Art Adams the day prior to his reinstatement and Adams indicated to him that he initially felt that Hanni was correct but upon reconsideration, determined that the action taken was a bit harsh for the alleged infractions of the various rules, regulations and policies. Petitioner was unaware of any rule which required that PDR's be in writing prior to submission of the case to court for hearing. He was requested to, and prepared a document explaining his actions surrounding the alleged violation of the judge's "hold-in-custody" order. In explaining his alleged withholding of cases, Petitioner indicated that for the majority of his cases, he submitted them to the supervisor within two or three days following the close of the hearing. He testified that his case files did not always include rules of probation due to other pressing reasons, for example other cases which were in court for final hearing. As regards the reprimand that he received for using profanity, he denied that he made any profane statements in the presence of a female. He testified that it was in his opinion, up to the counselor's discretion to see what manner or means a youth should be transported to a detention center. Finally he testified that the judge authorized the release to the juvenile's father.
In resolving the issue posed here, the undersigned has examined the documentary and other evidence and viewed such in light of the Respondent's alleged reasons cited for prompting the Petitioner's suspension. In so doing, I am forced to conclude that the suspension was caused, at least in part, based on Petitioner's philosophical differences with his supervisor, Grace L. Scarberry.
H. Squier Hanni, the Deputy District Administrator who ordered the suspension admitted as much in his testimony. In fact he testified that the philosophical differences existing between Petitioner and Scarberry played a major part in his decision to discharge Petitioner. Thereafter on the following day, Hanni consulted with HRS Personnel Director, Art Adams, who correctly pointed out that philosophical differences should not play any part in a decision to discharge an employee. When Hanni was persuaded to reduce the disciplinary action to a suspension, the undersigned is of the opinion that the appropriate corrective action was not taken for the following reasons. By his own admission, Hanni indicated that Petitioner's philosophical differences unquestionably played a factor in his decision to discharge Petitioner. The evidence also reveals that the alleged violations of rules, policies etc., which formed the basis of the decision to terminate Petitioner were the same type conduct which other employees engaged in without any disciplinary action being taken against them for such conduct. This is clearly disparate treatment and lends support for a conclusion that the cited reasons for the discharge were pretextual and the real reason was the philosophical differences. Even if it was less clear that other employees had engaged in the kind of conduct which led to Petitioner's suspension without any disciplinary steps taken, the suspension is still suspect in view of Hanni's forthright testimony that the philosophical differences played a major part in his decision which ultimately led to Petitioner's suspension. Further support for this conclusion rests in an examination of the remarks contained in Scarberry's letter to Petitioner indicating that while he had been performing satisfactorily, his critical remarks were part of the reasons that she evaluated his performance as conditional (See Appellant's Exhibit #2). This evaluation was made immediately following Petitioner's return to work and after the suspension. At that time, Petitioner again requested a transfer which was denied. He was finally permitted to transfer in mid- September, 1975, and he was evaluated above satisfactory in November 1975, by his supervisor, Tom V. Waldren.
Based on the above and the entire record in this case, I find that Petitioner was suspended at least in part due to his philosophical differences with supervisor Grace L. Scarberry. Inasmuch as the suspension rested in part on this fact, I therefore conclude that the suspension was improper and should have been retracted. I shall so recommend. 3/
CONCLUSIONS OF LAW
The parties were properly noticed pursuant to the notice provisions of Chapter 120, F.S.
The matter was heard pursuant to Chapter 120.57, F.S.
The Respondent by its agent, H. Squier Hanni, suspended Warren Frederick Shaw without pay for the period July 29, 1975 through August 22, 1975, at least in part due to his philosophical differences with his then supervisor, Grace L. Scarberry and by so doing, engaged in improper conduct.
Based on the above findings of fact and conclusions of law, I recommend that Respondent make whole its employee, Warren Frederick Shaw, for any loss in earnings plus reasonable attorney fees and costs as provided in Chapter 110.061(3), F.S., that he suffered during the above referenced period in which he was suspended. I further recommend that his personnel records be expunged of any material relative to the suspension.
DONE and ENTERED this 20th day of September, 1976, in Tallahassee, Florida.
JAMES E. BRADWELL
Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1976.
1/ Although all of the arguments by the parties and the authorities cited by them, whether made orally at the hearing or by documentary evidence, may not be discussed in this recommended order, each has been carefully weighed and considered.
2/ Unless otherwise noted, all dates are in 1975.
3/ In making this recommendation, the undersigned recognizes the fact that in some cases a philosophical difference, if work related, may be a proper matter for taking disciplinary action. However, as the facts posed here reveal that the philosophical differences lie in Petitioner's criticism of Scarberry with little if any connection to his alleged work deficiencies, such differences as Personnel Director, Art Adams, noted, should not enter into a decision to take disciplinary action. And as stated herein, the cited work related reasons advanced for the suspension were of the type that most, if not all of the other counselors had engaged in without any disciplinary action. Thus, in the undersigned's opinion, those reasons were a mere pretext utilized by Respondent, by its agents, to seize upon the real problem, the philosophical differences which under the circumstances here, did not afford ample basis to justify the suspension.
Douglas E. Whitney, Esquire 1323 Winewood Boulevard
Charles H. Vaughan, Esquire 1109 East Las Olas Boulevard Ft. Lauderdale, Florida 33301
