STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES TOWNSEND, )

)

Petitioner, )

)

vs. ) CASE NO. 77-299

)

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, YOUTH ) SERVICES PROGRAM OFFICE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was referred to this division by the Career Service Commission to hear the Petitioner's appeal from his demotion at the Lancaster Youth Development Center in Trenton, Florida. Pursuant to Notice a hearing was held by the undersigned in Gainesville on April 13, 1977.

APPEARANCES

For Petitioner: Walter H. Thomas, IUR

American Federation of State,

County and Municipal Employees AFL-CIO 1201 Universal Marion Building Jacksonville, Florida 32202

For Respondent: J. E. Hodges, Esquire

District Three Attorney Department of Health and

Rehabilitative Services

Third Floor, Oak Park Executive Square 2002 Northwest 13th Street Gainesville, Florida 32601

The Petitioner had held the position of Director of Social Services at Lancaster and on September 23, 1976, he was demoted to the position of Clinical Social Worker I with no reduction in pay. The grounds for the Petitioner's demotion were that he had been rated conditional on June 8, 1976 and was informed he needed improvement in the areas concerning training or personnel, lack of instruction to social workers, and lack of coordination between other departments. In the memo informing the Petitioner of his demotion he was advised that he had not shown improvement in these areas and was therefore being demoted. Petitioner began working at the Lancaster Youth Development Center in June of 1973 as a Social Worker. He was eventually promoted to Director of Social Services and after a long period of being on a training status and then finishing a probationary status he became a permanent career service employee in this position in or around February of 1976. Approximately simultaneously with the Petitioner achieving permanent status a new superintendent was appointed for Lancaster. With the new superintendent came a different attitude toward the

approach Lancaster was to take with the young people in its charge. The change was from a largely retention type center to one seeking improvement, counseling and a change in attitudes toward these youths. When the Petitioner was rated conditional in June of 1976 he was given many opportunities to improve his performance, but little improvement if any was noticed. It suffices to say that there was adequate testimony presented at this hearing to demonstrate that the Petitioner was not performing in a satisfactory capacity in his position as Director of Social Services and his demotion was justified under the facts.

Petitioner bases part of his defense on his interpretation of Rule 22A- 9.03, F.A.C., which states in pertinent part:

"(6) If an employee received an overall evaluation of Conditional or Unsatisfactory, the immediate supervisor, with the cooperation of his superiors, shall be responsible for working with and assisting the employee in accomplishing the necessary improvement in performance. If, at the time of receiving such an evaluation, the employee's performance is retained by the agency, the employee's performance shall be reevaluated at least each 60 days thereafter until:

1. The employee's performance has improved and is evaluated as at least Satisfactory, or;

2. Six months have elapsed without the employee receiving a rating of at least Satisfactory. In such cases, management shall take action to remove the employee from the class."

The Petitioner would have this rule interpreted as requiring that the agency retain the employee for at least six months before action is taken. Such an interpretation has been rejected by the courts of this state in cases such as Florida Department of Health and Rehabilitative Services v. Career Service Commission, et al., 308 So.2d 597.

Furthermore, the Petitioner has raised the issue of racial discrimination as a ground for his demotion. The Petitioner is black and has claimed that his demotion was racially motivated. No affirmative evidence -- was presented which would indicate this to be true. It is, therefore

RECOMMENDED:

That Petitioner's demotion be sustained.

DONE and ORDERED this 10th day of May, 1977, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1977.

COPIES FURNISHED:

Mr. Walter H. Thomas, IUR American Federation of State,

County and Municipal Employees AFL-CIO

1201 Universal Marion Building Jacksonville, Florida 32202

J. E. Hodges, Esquire District Three Attorney Department of Health and

Rehabilitative Services

Third Floor, Oak Park Executive Square 2002 Northwest 13th Street Gainesville, Florida 32601

Mrs. Dorothy B. Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304

Docket for Case No: 77-000299

Orders for Case No: 77-000299