JOHN L. LYNCH, )
vs. ) CASE NO. 80-437
) DIVISION OF HIGHWAY PATROL, ) DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, )
Respondent. )
Pursuant to notice, an administrative hearing was held in the above styled cause before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, on May 7 and 8, 1980 commencing at 2:10 p.m. May 7 in the Conference Room, Third Floor, City Hall, 151 SE Osceola Street in Ocala, Florida.
Florida Police Benevolent Association, Inc.
For Respondent: Enoch J. Whitney, Esquire
Whether the conditional evaluations for the rating period of September 1, 1978 to September 1, 1979 and the special evaluation of September 15, 1979 of the Petitioner, John L. Lynch, were based upon factors other than job performance; whether the Report of the Grievance Committee and the decision of the Executive Director should be affirmed.
Petitioner John L. Lynch is and has been since June 1, 1970 a Trooper in the Florida Highway Patrol, a division in the Department of Highway Safety and Motor Vehicles. During his service he had previously received "satisfactory" annual ratings until September 1, 1979 and a special evaluation on September 15, 1979, when he was evaluated "conditional." On October 25, 1979 Petitioner Lynch filed a grievance alleging that the conditional performance ratings were based on facts other than job performance.
The Grievance Committee found there was reason to question the justification for ratings in certain categories, but recommended that the grievance be denied and a copy its report together with the disputed evaluations be placed in Petitioner's personnel file. The Executive Director adopted the recommendation of the Committee but cautioned Petitioner's supervisors to reflect an accurate and properly justified evaluation of his job performance. Petitioner requested an administrative hearing, which request was transmitted by Respondent to the Division of Administrative Hearings.
Subsequent to the forwarding of Petitioner's request for a hearing, Respondent filed a Motion to Dismiss on grounds that the request for an administrative hearing was premature. Petitioner Lynch filed a Response, and after oral argument the Hearing Officer denied the Motion to Dismiss. It was concluded that the determination by the agency head that the disputed evaluations were not based upon factors other than job performance was an order subject to an administrative hearing and was not an allegation that the Respondent agency failed to comply with the rules and regulations which would have required the employee to first file a grievance with the State Personnel Director if dissatisfied with the agency head's decision.
Prior to hearing the parties filed a Stipulation (Joint Exhibit No. 1) indicating a factual dispute as to allegations contained in Paragraphs 3 and 4 of Petitioner's "Petition for a Section 120.57 Administrative Hearing." The Stipulation also requested the Hearing Officer to make a determination of certain legal issues.
On July 5, 1979 Petitioner Lynch, a Trooper I with the Division of Highway Patrol, Department of Highway Safety and Motor Vehicles, was evaluated by his supervisor, Sergeant W. F. Hinson, on the Employee Performance Evaluation and given a "conditional" rating for the period September 1, 1978 to September 1, 1979. He was again evaluated "conditional" in a special evaluation on September 15, 1979. Petitioner then filed a grievance pursuant to Rule 22A- 10.04, Florida Administrative Code and a three-member Employee Improvement Committee was appointed pursuant to Rule 22A-10.04(4)1, which heard the grievance on December 5, 1979. The Committee filed its report dated December 31, 1979 with the Executive Director, the agency head, recommending that the grievance be denied "since the Committee was presented with insufficient evidence to support the allegation that the evaluations were based on factors other than performance." The Executive Director adopted the report and denied the grievance but stated since the Committee found reason to question the justification for ratings in certain categories, a copy of the Committee report will be affixed to both evaluation reports and placed in Petitioner's personnel file (Joint Exhibit No. 2). The Committee Chairman, who prepared the report, testified at the hearing and supported the report (Transcript, pages 145-148). The Committee had found reasons to question the justification of ratings in certain categories but did not change the evaluation of Petitioner inasmuch as the Committee members had understood from a previous matter that it was not the duty of the Committee to change evaluations (Transcript, pages 151-154). The Committee also felt it lacked competence to evaluate the "area of 'attitude' and things of that nature" (Transcript, page 158).
Prior to the subject evaluations of Petitioner Lynch, a petition signed by fourteen (14) wrecker companies was filed with Sergeant W. J. Hinson alleging favoritism and irregularities in the procedures of the wrecker services rotation in the district serving Ocala, Florida. Both Petitioner and Sergeant Hinson work in that district, and Sergeant Hinson is responsible for the regulation and
use of the wrecker companies. On June 13, 1979 a meeting was conducted to hear the wrecker companies' grievances. On June 15, 16, 17 and 18, 1979 Sergeant Hinson surveilled Petitioner on the midnight shift in an unmarked car. On June 19, 1979 Petitioner was charged with numerous violations of rules, regulations, policies and statutory laws by Sergeant Hinson and was recommended for suspension and dismissal. Petitioner Lynch was thereafter suspended for sixteen
(16) hours without pay. The suspension was not at issue in this administrative hearing, having been resolved under the agreement between the State of Florida and the Florida Police Benevolent Association, Inc., and no further facts concerning that incident were adduced at the hearing.
On July 5, 1979 Petitioner was evaluated as "conditional" and was also evaluated as "conditional" on September 15, 1979. He believes that his "conditional" rating was a result of the filing of the wrecker companies' complaint. The Report on Petitioner's Grievance heard December 5, 1979 noted the Complaint of the wrecker service operators, and found that Petitioner is a friend of the complainant wrecker operator and Sergeant Hinson is a friend of the wrecker operator who was accused of receiving more than his share of the wrecker business from the roadways of the Ocala area. The Grievance Committee discussed the fact that Petitioner Lynch felt his "conditional" ratings by his supervisor, Sergeant Hinson, did not evaluate his job performance but reflected Hinson's suspicions that Petitioner supplied information to the wrecker complainant and encouraged the complainant to file the aforementioned petition. The Committee reviewed the Employee Performance Evaluation of Petitioner and the factors of appearance, attendance, job knowledge, work quality, work quantity, initiative, dependability, attitude, and relationship with others. It found that the ratings on job knowledge, work quality, work quantity and initiative to be questionable.
At the administrative hearing the Chairman of the three-member Grievance Committee which reviewed the grievance filed by Petitioner Lynch supported the report of the Committee and stated he felt from his own review that the "conditional" evaluations were fair. Sergeant Hinson, witness for Respondent, who rated Petitioner, had counseled him prior to the rating as to his appearance factor, attendance, work quantity, activity reports and other work-related matters. Captain Hodges, who sat in on and reviewed the first rating and reviewed the second rating, had no reason to doubt the truthfulness of any of the ratings given Petitioner. The Corporal, who helped with the evaluations, worked with Petitioner and had supervised him for eight years felt he heeded supervision or would begin to make mistakes." Petitioner was not present at the time he was rated by the Sergeant and Corporal (Transcript, page 250).
After a review of the evidence filed in this case including the Stipulation, a copy of which is attached hereto and made a part hereof, and after listening to the witnesses for both parties and studying the legal documents, the Hearing Officer finds that the factors on the Employee Performance Evaluation are largely "subjective" as opposed to "objective". The bias or motivation of a supervisor who rates an employee on appearance, attitude, initiative, and relationship with others is difficult and often impossible to assess, and the rating of the same employee during the same period but by two supervisors may be inconsistent depending upon the values, education, and cultural background of the person responsible for the rating. Ratings for job knowledge, work quality and work quantity also depend on the education, knowledge and expectations of those who rate and review the Employee Performance Evaluation. There was conflicting evidence presented to the Grievance Committee and at the subject hearing on the ratings given Petitioner for job knowledge,
work quality, initiative and dependability, but this was insufficient to require a recommendation by the Hearing Officer to change the evaluation made by Petitioner's immediate supervisor. The Grievance Committee had properly reached the same conclusion. The evidence to substantiate the rating given Petitioner Lynch was in the area of attendance; ascertainable appearance such as smoking, need for a haircut and the wearing of a hat; the number of accidents or road incidents reported; and the adherence to established work practices in the district.
The Hearing Officer finds, as the Grievance Committee had previously found and the varying opinions of the numerous witnesses substantiated, that the findings of one supervisor as to many of the rating factors on the evaluation are so personal that a rating by another supervisor may be dramatically different. Witnesses made such statements that they could not "second guess" a supervisor, could not "look into his skull," or were not competent to judge "attitude." Sufficient evidence was produced to substantiate the rating of the supervisor on the evaluation factors that are mainly "objective." As for the "subjective" factors the fact that the "conditional" evaluation came in a time sequence that could have indicated an unlawful motive or biased judgment was insufficient evidence to find that the evaluation was a result of unlawful motivation. In summary, there is insufficient evidence to support the allegation of Petitioner Lynch that his "conditional" evaluations were based on factors other than job performance.
Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of this matter and the parties thereto pursuant to Section 120.57, Florida Statutes.
Rule 22A-9.02(1), Statements of Policy, Florida Administrative Code, requires that an employee within the State Career Service System be evaluated on an impartial basis.
Rule 22A-10.04(4)4.(1), Grievances, provides an employee who is dissatisfied with an agency head's decision a right to file a grievance with the State Personnel Director if the allegation is that the agency "failed to comply with the Personnel Rules and Regulations." The foregoing section of the rule is not applicable to the grievance of Petitioner Lynch, who alleged his evaluation was based on factors other than job performance, and it was not necessary to submit his grievance to the Director.
Rule 22A-10.04(4), supra, affords a procedure for handling grievances when an employee alleges that his or her performance evaluation is based "on factors other than the employee's performance." Petitioner Lynch alleged that his "conditional" evaluation was motivated by factors other than his performance, i.e., that his supervisor was interested in his suspension and dismissal because of his suspected involvement in a complaint filed by some wrecker companies. Respondent properly followed the foregoing rule.
Rule 22A-9.03(2), Required Procedures, prohibits the change of performance evaluations by "higher level supervisors." The Executive Director is the agency head and is a higher level supervisor in the Division of Highway Patrol, Department of Highway Safety and Motor Vehicles, and properly followed the correct procedure when he reviewed the Committee's report as to the rating by Petitioner's immediate supervisor but did not change that rating.
An administrative hearing under Section 120.57, Florida Statutes, was the only procedure available to Petitioner Lynch to determine the disputed issues of material fact which affected Petitioner's substantial interests.
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Employee Performance Evaluation of Petitioner John
L. Lynch for September 1, 1978 to September 1, 1979 and for September 15, 1979 be affirmed inasmuch as there is insufficient evidence to show that factors other than job performance entered into his rating on said evaluations. It is also recommended that the Grievance Committee's Report and the final order of the agency head be affirmed.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 11th day of September, 1980.
Enoch J. Whitney, Esq.
Gene "Hal" Johnson, Esq. Florida Police Benevolent
Association, Inc.
DELPHENE C. STRICKLAND
Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1980.
