PATRICIA A. SWAN, )
vs. ) CASE NO. 88-3167
Respondent. )
Pursuant to notice, a formal hearing was held in this cause on September 28, 1988, in Gainesville, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.
For Respondent: Lynne T. Winston
The issue is whether the Department of Corrections, (DOC) engaged in an unlawful employment practice by discriminating against Petitioner, Patricia A. Swan, on account of race or in retaliation. Specifically, Petitioner alleges that DOC involuntarily reassigned Petitioner to another institution based on her race and in retaliation for her affidavit in another discrimination case; that DOC's failure to evaluate her in November, 1986, and November, 1987, was motivated by race; and that DOC changed her duties and her work station when it reassigned her back to her original place of employment
Swan filed a complaint of discrimination with the Florida Commission on Human Relations (FCHR), which case bears FCHR Case No. 87-4466. A Notice of Determination was entered on May 17, 1988, wherein reasonable cause was found to exist that an unlawful employment practice had occurred. There was a failure of conciliation on June 1, 1988. As a result, Swan filed her Petition for Relief which forms the basis for this case.
Swan presented the testimony of Linda Christine Lundy, Patricia Ann Swan, David Gordon and Lyn Marie Kilvington. Petitioner's Exhibits 1-10 and 12-24 were admitted in evidence. DOC presented the testimony of Lester Dinkins, J. C. Combs, Ralph Nathan Holt, Lisa Goodner, Norma B. Burchette, John L. Townsend, Jr., and Ronald G. Kronenberger. Joint Exhibits 1-10 were admitted in evidence.
The parties waived the filing of a transcript. The parties timely filed their proposed findings of fact and conclusions of law on October 13, 1988. All proposed findings of fact and conclusions of law have been considered. Specific rulings on the proposed findings of fact are made in the Appendix attached hereto and made a part of this Recommended Order.
Findings of Fact 1-15 are based on the facts agreed on by the parties and contained in their Prehearing Stipulation filed on September 19, 1988.
Pat Swan has been employed by the Department of Corrections as a Personnel Technician I since July, 1981.
On March 3, 1987, Pat Swan assisted the Commission in the investigation of Linda Lundy v. Department of Corrections (FCHR #86-4478) via affidavit. She confirmed allegations and statements asserted by Ms. Lundy. On October 14, 1987, the investigator submitted a recommendation of cause and on November 6, 1987, the final determination of cause was issued.
On June 26, 1987, Pat Swan was notified of her transfer to New River Correctional Institution effective July 6, 1987.
New River Correctional Institution was a distance of 45 miles from the Region II office. This was a lateral transfer for Pat Swan and resulted in no loss of pay or benefits.
There were six other Personnel Technician I's within a 50-mile radius of New River who could have been transferred to the new position. All of those persons are white.
No departmental employee was asked if he or she would willingly accept a transfer.
Pat Swan was transferred involuntarily.
Although the Respondent informed Pat Swan that her reassignment would be for an indefinite period of time, her former position was filled on August 7, 1987, by Ms. Gertrude Bishop.
The Respondent was notified of Pat Swan's Complaint of discrimination on July 31, 1987.
Subsequent to her notice of transfer, Pat Swan apprised Mr. David Gordon, and he, in turn, approached Mr. Dinkins questioning his own status as an employee.
Pat Swan's anniversary date is November 1st. According to the department's rules, she should be evaluated in November of each year. However, she was not evaluated in November, 1986, or November, 1987.
The Department's rules dictate that performance evaluations will be generated for each employee within 30 calendar days of the employee's anniversary date, and performance appraisals shall be used for promotion and employee merit raise advancements
In November, 1987, Mr. R. Nate Holton, Personnel Manager of New River Correctional Institution, declined to evaluate Pat Swan. The reason given by Mr. Holton was that he was advised by Ms. Lisa Goodner not to evaluate her because she did not have performance standards on file.
On April 5, 1988, Pat was notified that effective April 20, 1988, she was going to be transferred back to Region II Personnel Office in the same classification and at the same rate of pay. At her new job she was stationed in the lobby and the job duties have changed.
Pat Swan is a member of a protected group.
The following additional facts are based on the evidence presented at the formal hearing and on the credibility determinations of the Hearing Officer.
Petitioner began employment with DOC in July, 1981, at the Region II office in Gainesville, Florida.
Petitioner's supervisor, the Senior Personnel Manager, Don Finley, did not complete a performance appraisal on Swan for the appraisal period of November 1, 1985, to November 1, 1986.
As previously noted, Swan assisted the FCHR in its investigation of another case, Lundy v. DOC, FCHR Case No. 86-4478, by filing an affidavit.
Career Service System Rules specify that for permanent employees, an annual appraisal shall be completed within 30 calendar days following each employee's anniversary date. (22A-9.003(3), Florida Administrative Code). The appraisals are the responsibility of the employee's immediate supervisor. (22A- 9.003(2), Florida Administrative Code). One of the purposes of the performance appraisal is to determine the employee's eligibility for merit salary advancements. (22A-9.003(3), Florida Administrative Code).
Swan's evaluations had been "Exceeds Standards" between 1983 and 1985. November, 1985, was the last evaluation she received. She should have been evaluated in November, 1986, and November, 1987, but was not.
In 1986 and 1987 every employee of the Department who received an "exceeds performance standards" annual appraisal received a 3% merit increase on his or her anniversary date. Any special appraisal done outside of the 30 days after the anniversary date does not relate back to the anniversary date so as to make an employee eligible for a merit increase.
Lester Dinkins took over the job of senior personnel manager at the Gainesville Office on March 20, 1987.
Lester Dinkins prepared new performance standards for Petitioner in April, 1987. These standards covered the period from April 24, 1987, to November 1, 1987.
In a memorandum dated April 27, 1987, Lester Dinkins informed Petitioner that since her service for the period November 1, 1986, to April 23,
1987, was not covered by a performance appraisal, her rating for this time period would be "Achieves Performance Standards."
In June, 1987, R. Nate Holton, personnel manager at New River Correctional Institution informed Mr. Dinkins that he was having a problem drawing an acceptable applicant for the PTI position which he had advertised.
New River Correctional Institution was a new institution.
On June 26, 1987, Petitioner was notified that she was being reassigned from her present position as PTI in the Regional Personnel Office to PTI at New River Correctional Institution effective July 6, 1987. The idea to reassign Petitioner was Dinkins' suggestion. Dinkins knew nothing of the Lundy case or of Petitioner's affidavit in that case.
Petitioner's reassignment was lateral and did not result in a reduction of salary or benefits, or a change in the level of responsibility.
Petitioner's reassignment to New River Correctional Institution was within a 45-mile radius of the Gainesville Office.
Petitioner's supervisor at New River Correctional Institution was the personnel manager, R. Nate Holton. Mr. Holton had been newly appointed to the position of personnel manager at the time of Petitioner's reassignment. Holton knew nothing of the Lundy case until the allegations regarding it were made in this case.
Mr. Holton failed to develop new performance standards for Petitioner and to discuss them with her after she was reassigned to New River Correctional Institution.
Mr. Holton could not use the standards which Mr. Dinkins had previously developed for Petitioner to complete her annual performance appraisal because Petitioner's duties at the institution were not exactly the same as they had been at the regional office.
In November, 1987, Mr. Holton discovered that he had failed to develop performance standards for Petitioner and he contacted Lisa Goodner, Assistant Chief of the Bureau of Personnel for the Department, to determine his course of action.
Ms. Goodner advised Mr. Holton that because he had not identified performance standards for Petitioner when she was reassigned to New River Correctional Institution as required by Chapter 22A-9, Florida Administrative Code, and by the Department's performance appraisal procedures, he could not appraise Petitioner.
Petitioner's rating was considered to be at the "Achieves Performance Standards" level for the period of time from April 24, 1977, to November 1, 1987, since this period of service was not covered by a performance appraisal.
As Assistant Chief of the Department's Bureau of Personnel, Ms. Goodner provides advice to field personnel staff regarding all areas of personnel administration and the interpretation of personnel rules.
Petitioner filed a grievance in which she challenged the fact that she had not received a formal performance appraisal
The Department denied Petitioner's grievance pursuant to Chapter 22A- 9.002(2), Florida Administrative Code, which states that employees shall not be expected to meet performance standards which have not been defined and identified to them as being part of the requirements of their positions.
A performance appraisal which had been completed on Mr. Holton, even though standards had not been previously written and discussed with him, was ordered sealed and marked invalid by Richard Dugger, Secretary of the Department.
While Petitioner was working at New River, the Region II office received a new Personnel Technician III position. David Gordon was promoted to that position. Gertrude Bishop applied for and was promoted to the Personnel Technician II position that had been filed by Gordon. Petitioner met the qualifications for the Personnel Technician II position, but did not apply for it. The opening was advertised statewide and at all DOC facilities.
During the time that Petitioner had been at New River Correctional Institution, the Gainesville personnel office had been reorganized in response to a Department audit.
The duties of all the personnel technicians in the Gainesville personnel office were changed and redistributed as a result of the audit.
Petitioner was placed in the lobby area upon her reassignment to the regional office because there was inadequate space to provide her with her own office.
Prior to Petitioner's reassignment to New River Correctional Institution there were 4 persons in the Gainesville personnel office. Petitioner was the only PTI.
There are currently 8 persons in the Gainesville personnel office, which number includes 3 PTI's.
The duties currently performed by Petitioner are at the professional level and come within the career service class specifications for a PTI.
Of the 8 employees in the Gainesville personnel office, 3 of them are black. They are David Gordon, Gertrude Bishop and Petitioner.
With the exclusion of Mr. Dinkins, blacks are the highest ranking employees in the Region II personnel office.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Petitioner contends that her reassignment to New River Correctional Institution in July, 1987, was based on the fact that she is black and was also an attempt to retaliate against her for her participation in the Linda Lundy case. The Department asserts that its reassignment of Petitioner was a managerial prerogative and that Petitioner was reassigned because it was believed that her skills, experience and qualifications best suited her for the
position at New River Correctional Institution, which was a new institution, and that the reassignment was not a disciplinary action and was not intended to punish Petitioner in any way. Further, Petitioner contends that the failure of DOC to evaluate her on her anniversary dates in 1986 and 1987 also was the result of race discrimination and was in retaliation. The Department asserts that the two failures to evaluate were the result of inadvertent omissions, which could not be remedied by after-the-fact appraisal, and that the rules provide for such circumstances by deeming the employee to have met standards for the period of time not covered by an appraisal. Finally, Petitioner contends that she was discriminated against and retaliated against in her reassignment back to the Region II office because her duties were different and she did not have a private office. The Department asserts that the changes were the result of reorganization and acquisition of new staff and not the result of discrimination or retaliation.
Petitioner has the burden of proving a prima facie violation of Section 760.10, Florida Statutes. The burden then shifts to DOC to articulate legitimate, nondiscriminatory reasons for the actions taken. Finally, the burden shifts back to the Petitioner to prove that the articulated reasons are pretextual.
Here, Petitioner has proved that she is black and that the terms and conditions of her employment changed. To that limited extent, Petitioner has shown a prima facie violation of Section 760.10(1)(a)
The Department has clearly articulated legitimate, nondiscriminatory reasons for its actions. Specifically, DOC has proved that its reasons for reassigning Petitioner to New River were legitimate and valid. A person with Swan's experience and skills was needed at New River and the Career Service System rules, Chapter 22A-7, Florida Administrative Code, not only authorize such reassignment, but preclude any appeal by the reassigned employee. As relevant, Rule 22A-7.008 states:
An employee shall be given a reassignment appointment when moved from a position in one class to a different position in the same class or in a different class having the same degree of responsibility and the same salary range maximum.
* * *
5. An employee who is reassigned from
one position to another position shall not have the right to appeal such action to the Public Employees Relations Commission.
Rule 22A-7.009 makes it clear that Petitioner was reassigned, not transferred. A transfer occurs when an employee is moved from one geographic location to another in excess of 50 miles from the employee's current work location. Here, Petitioner was reassigned to a work location less than 50 miles from the Region II office.
DOC's reassignment of Petitioner was not racially motivated. Even though there were other PTI's, who were white within 50 miles of New River, there were valid reasons for selecting Swan for the reassignment. No consideration of race or of the Lundy case played any part in Dinkins', and ultimately DOC's, decision to reassign Petitioner.
DOC's failure to do annual evaluations of Petitioner on her anniversary dates in 1986 and 1987 were the result of omissions and not the result of discrimination or retaliation. Don Finley, also a black, failed to evaluate Swan in November, 1986. While Swan stated what she considered to be racially motivated reasons for this failure, the fact is that no competent evidence supported her assertions. Finley did not testify and any purported statements by Finley as to his reasons are rank hearsay and cannot support a finding of fact.
Any appraisal done after November, 1986, would have been a special appraisal and could not relate back to the anniversary date for purposes of a merit increase. In fact, Dinkins attempted to correct Finley's omissions by providing new standards and by placing a memo showing a rating of "Achieves Standards" in Swan's personnel file, as specified in Rule 22A-9.003(3)(e), Florida Administrative Code, and Performance Appraisal Procedures of the Department, Chapter 3p. The new standards were in effect from April, 1987, until Swan was reassigned. Upon reassignment, Holton, Swan's new supervisor, should have prepared performance standards for her position. Based on his inexperience and omission he failed to do so. When Swan's anniversary date arrived in 1987, Holton discovered that he could not evaluate Swan because Rule 22A-9.002(2) specifies that employees shall not be expected to meet performance standards which have not been defined or identified to the employee for the appraisal period. The performance standards prepared by Dinkins could not be used because they were sufficiently different from Swan's duties at New River as to violate Rule 22A-9.002(2). This omission by Holton, which resulted in Swan again being determined to have achieved standards pursuant to Rule 22A- 9.003(3)(e) and the departmental procedures, was not racially motivated and did not relate in any way to the Lundy case.
Finally, Swan was reassigned back to the Region II Office, but in her absence, the personnel office had been reorganized and had received several new personnel technician positions. Whereas Swan had been the only PTI at the time she was reassigned to New River, now there were three PTIs and whereas the only other personnel technician in the office had been David Gordon in the PTII position, now there was a PTIII (Gordon) and a PTII (Bishop). Despite this increase in professional staff, the physical size of the office remained the same. For this reason only, Swan's desk is now in the lobby area of the office. There is simply no office available for her and the other personnel technicians are doubled up in the existing office space. Further, Scan's duties are not the same as they were before her reassignment to New River and are not the same as they were at New River because in both of those situations Swan was the only PTI in the office. Now the duties are spread among the three PTIs. Swan's current duties are within the class specifications for PTI and are professional in nature.
Swan now argues that she should have been given the PTII position when Gordon was promoted to PTIII. While that PTII opening was advertised and was sent to all DOC facilities, Swan did not apply for it. She is therefore precluded from complaining that she did receive the promotion.
The reasons articulated by DOC for its actions are legitimate, do not discriminate or retaliate against Swan, and are not pretextual. Swan is not entitled to any relief because no violation of Chapter 760, Florida Statutes, has been proven by the preponderance of the competent, substantial evidence. Hence, the Petition for Relief should be dismissed.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final
Order, and therein deny Patricia A. Swan the relief sought and dismiss the Petition for Relief.
DONE AND ENTERED this 10th day of November, 1988, in Tallahassee, Leon County, Florida.
DIANE K. KIESLING
Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3167
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.
Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, PATRICIA A. SWAN
Specific Rulings on Proposed Findings of Fact Submitted by Respondent, FLORIDA DEPARTMENT OF CORRECTIONS
1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1 & 16); 2(11); 3(17); 4(2 & 18); 5-12(22-29); 13(8); 14(7); 15(8); 16-25(30-39); 26(14); 27-33(41-47); 34(40); and 35(48).
Carla D. Franklin, Attorney at Law Post Office Box 694
Lynn T. Winston
Donald A. Griffin Executive Director Florida Commission on Human Relations
