vs. ) CASE NO. 90-4181
Respondent. )
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on September 26, 1990, in Tallahassee, Florida.
For Petitioner: Ben R. Patterson, Esquire
Whether a memorandum dated October 11, 1988, from Trilly Lester to the Petitioner, Marlin Myers, should be removed from Mr. Myers' State of Florida personnel file?
On May 1, 1989, the Petitioner, Marlin Myers, filed a Petition with the Respondent, the Department of Insurance and Treasurer (hereinafter referred to as the "Department"), requesting a formal hearing concerning the placement of a memorandum dated October 11, 1988, in Mr. Myers' personnel file. The Department notified Mr. Myers by letter that it was denying his request for a formal hearing. In an opinion filed May 24, 1990, the District Court of Appeal, First District, reversed the Department's decision and remanded the case with directions to grant Mr. Myers' request for a formal hearing. The District Court's mandate was issued on June 26, 1990.
By letter dated July 1, 1990, the Department filed the Petition and the District Court's opinion and mandate with the Division of Administrative Hearings. The case was assigned to the undersigned.
At the formal hearing Mr. Myers testified on his own behalf and presented the testimony of Trilly Lester, Helen Burgess, John Frederick, Martin Hoffman and John R. Knight. Mr. Myers offered one exhibit which was accepted into evidence.
The Department presented the testimony of Rene Yvonne Ash and Lewis "Ray" Williams. The Department offered eight exhibits. A ruling was reserved on Department exhibit 7. That exhibit is hereby rejected.
The parties also offered one exhibit which was marked as Joint exhibit 1 and accepted into evidence.
At the commencement of the formal hearing the parties stipulated that: (1) official recognition of Rule 22A-11.03, Florida Administrative Code, should be taken; (2) a memorandum of October 11, 1988, from Trilly Lester to Mr. Myers has been placed in Mr. Myers' official State of Florida personnel record; (3) Mr.
Myers has been an employee under the State of Florida Career Service system at all times relevant to this proceeding; (4) Mr. Myers' personnel file is a public record under Chapter 119, Florida Statutes; and (5) official recognition of Mr. Myers' personnel file should be taken.
The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
Mr. Myers is, and has been at all times relevant to this proceeding, an employee of the Department with permanent status in the Career Service System.
Mr. Myers is a member of the Florida Public Employees Council 79, an affiliate of the American Federation of State, County and Municipal Employees, AFL-CIO (hereinafter referred to as "AFSCME"). AFSCME is the bargaining unit for those State employees who are members. AFSCME has entered into a Master Contract with the State of Florida. The Master Contract, which is effective from July 1, 1987 through June 30, 1990, established certain requirements for the treatment of AFSCME members by State employers. The Master Contract applied to Mr. Myers.
Since March 2, 1987, Mr. Myers has been employed as an Insurance Specialist III (or similar title) within the Department's Bureau of State Liability Claims (hereinafter referred to as the "Bureau"). The Bureau is part of the Department's Division of Risk Management.
Mr. Myers has received satisfactory evaluations while employed by the Department.
Mr. Myers has not been subjected to any formal disciplinary action,
i.e. oral or written reprimand, suspension, while employed by the Department.
The Bureau is responsible for processing and disposing of claims against various agencies of the State of Florida.
During 1987 or 1988 the Bureau was organized into two components, a "North" and a "South" group. Each group was supervised by an Administrator C. The two Administrator C's were supervised by Ms. Trilly Lester, the Chief of the Bureau.
Ms. Lester has been the Chief of the Bureau since May, 1988. Ms. Lester received a B.A. degree in history with a minor in government from Florida State University. Ms. Lester has been a supervisor for more than eleven years.
Each group within the Bureau consisted of an Administrator C, five insurance specialist III's, a secretary specialist, a claims processor and clerk typist specialists.
Mr. Myers was assigned to the North group. Lewis "Ray" Williams was the Administrator C of this group. Mr. Williams was Mr. Myers' immediate supervisor at all times relevant to this proceeding.
At times Mr. Williams has been critical of Mr. Myers' work and has attempted to inform Mr. Myers how he expects Mr. Myers to perform his duties. Mr. Williams' criticism of Mr. Myers has not been well received by Mr. Myers. A great deal of friction has arisen between Mr. Williams and Mr. Myers. Mr. Myers has, and still does, harbor a great deal of resentment and anger over the way Mr. Williams has supervised his work.
During the late summer or early fall of 1988 Mr. Williams reviewed a written document prepared by Mr. Myers. As a result of criticisms of the document by Mr. Williams, the document had to be retyped on more than one occasion. Mr. Myers did not believe the criticisms were justified and filed a grievance concerning Mr. Williams because he believed that Mr. Williams was harassing him and his typist about the document.
An "oral step grievance" was held at Mr. Myers' request on September 23, 1988. An "oral step grievance" is the first step required by the AFSCME Master Contract for processing grievances filed by State employees who are members of AFSCME. The September 23, 1988, conference was held in a vacant office in the building where the Department was then located. The conference was attended by Mr. Myers, Helen Burgess, a staff representative of AFSCME, Ms. Lester and Mr. Williams.
During the September 23, 1988, conference Mr. Myers was angry about what he believed was Mr. Williams' mistreatment. Mr. Myers' face became ashen and his mouth was dry during the conference. Mr. Myers was visibly upset and angry.
During the September 23, 1988, conference, Mr. Myers was "emotionally upset". At least four times during his testimony in this case Mr. Myers stated that he had been "emotionally upset" during the September 23, 1988.
During the September 23, 1988, conference Mr. Myers stated that it was hard for him to concentrate on his work because he sat at his desk "boiling." Mr. Myers also stated that if Mr. Williams did not "back off" and stop criticizing his work, he did not know what he might do; after all, he was only human. (These statements will hereinafter be referred to as the "Comments"). The evidence concerning whether Mr. Myers made the Comments was not consistent. The weight of the evidence, however, supports a finding that Mr. Myers made the Comments.
Both Ms. Lester and Mr. Williams remembered the Comments being made. Mr. Williams took notes during the oral step grievance meeting and, at the end of the meeting, wrote the following summary concerning his notes about the Comments:
After rec'g criticism from Mr. W he became so upset he could not conc on his work as he sat at his desk "boiling"
If Mr. W does not "back off" and stop criticizing his work, he did not know what he might do - after all he was only human
See the last page of Respondent's exhibit 8. Mr. Williams' summary of the Comments was made immediately after the oral step grievance meeting and was based upon notes made by Mr. Williams at the same time that Mr. Myers made the Comments.
Mr. Myers testified that he did not use the term "boiling" or say that he did not know what would happen. Mr. Myers' testimony concerning whether he made the Comments is not, however, credible because his testimony is inconsistent with the following: (1) Ms. Lester's and Mr. Williams' recollection of what was said; (2) the notes taken during the meeting by Mr. Williams; (3) the fact that Ms. Lester repeated the Comments on several occasions immediately after the Comments were made; (4) the fact that Mr. Myers did not deny making the Comments at a meeting with Ms. Lester and Mr. Williams on October 10, 1988; (5) the fact that Mr. Myers did not deny making the Comments in a memorandum from Mr. Myers of October 11, 1988, and a message Mr. Myers wrote to Ms. Lester on October 12, 1988; and (6) the fact that Mr. Myers stated during a meeting held after October 10, 1988, that he simply did not remember whether he had used the term "boiling" and stated that his comment about not knowing what he might do was simply not complete because he had ended it by saying "if Mr. Williams comes and has a confrontation with me."
The Comments were not shouted by Mr. Myers. They were made in a normal tone. Mr. Myers was, however, emotionally upset and he admitted at the formal hearing that the tone or volume of his voice during the September 23, 1988, conference was "a little bit above average." Line 9, Page 95 of the Transcript. Mr. Myers also admitted the following during the formal hearing:
A I felt that I was being provoked, and I am a human person. And sometimes when some people want to press on something again and again, you get worked up, and I was worked up.
Lines 19-22, Page 93 of the Transcript.
Based upon Mr. Myers' Comments, Ms. Lester and Mr. Williams believed that Mr. Myers was bitter toward his work environment and that his bitterness was affecting his ability to be an effective employee. They also believed that Mr. Myers' comment about not knowing what he might do was a threat.
Ms. Lester's and Mr. Williams' concern about Mr. Myers' attitude during September, 1988, and their interpretation of the Comments was reasonable. The nature of the Comments and the manner in which they were made support this conclusion. Additionally, Mr. Myers made the following statements in a letter dated September 23, 1988, which support Ms. Lester's and Mr. Williams' concern:
As a condition to resolve this grievance I will accept a transfer over to Southern region under Charles Paintor. I will not accept any direction or supervision from Ray Williams after this transfer is made.
In the interim I request that Ray Williams and I have no personal or oral contact.
Material should pass through our secretaries or through you the Bureau [sic] Chief.
Respondent's exhibit 4. Mr. Myers was no longer willing to even deal directly with his immediate supervisor in a strictly professional capacity.
Mr. Myers' difficulty with Mr. Williams was also evidenced by the fact that he filed four grievances with the Department, all of which were either filed specifically against Mr. Williams or involved Mr. Williams' supervision of Mr. Myers. Three of the grievances were decided in favor of the Department and the fourth was withdrawn by Mr. Myers.
Ms. Lester was concerned about the Comments and believed that steps needed to be taken to diffuse Mr. Myers' bitterness. Therefore, Ms. Lester spoke to Lynn Dickinson, the Division Director, about the Comments. Ms. Dickinson suggested that Ms. Lester speak to Rene Ash, a senior personnel manager in the Department's personnel office.
Ms. Lester spoke with Ms. Ash a few days after the September 23, 1988, conference. Ms. Lester told Ms. Ash that Mr. Myers had made the Comments and expressed her concern that Mr. Myers' bitterness needed to be diffused. Ms. Ash agreed and suggested that Ms. Lester suggest to Mr. Myers that he consider using the Department's Employee Assistance Program (hereinafter referred to as the "EAP").
Ms. Ash is the coordinator of the Department's EAP.
The purpose of the Department's EAP was described by Ms. Ash as follows:
A The purpose of the program is to assist employees who may be experiencing work-related problems, which may be caused by emotional problems, financial, drug, alcoholism. . . .
Lines 13-17, Page 122 of the Transcript.
The EAP is not a disciplinary program. Participation in the EAP is strictly voluntary.
All records concerning an employee's participation in the EAP are treated by the Department as confidential. Documentation concerning participation in the EAP is maintained in a confidential file, separate from an employee's official personnel file.
The Department does not keep offers of the availability of the EAP to employees confidential. If participation in the EAP is suggested to an employee during a counseling session, the Department's policy is to document the EAP offer.
On October 10, 1988, Ms. Lester met with Mr. Myers to discuss the Comments, to inform Mr. Myers of the availability of the EAP and to discuss the role of the Bureau's clerk typist and insurance specialists. Mr. Williams also attended the October 10, 1988, meeting.
The October 10, 1988, meeting was considered a "counseling session" by Ms. Lester and the Department. It was not, however, a formal disciplinary meeting.
During the October 10, 1988, meeting, Ms. Lester indicated her concern over the fact that Mr. Myers had made the Comments during the September 23, 1988, conference, repeated the Comments and offered to assist Mr. Myers to coordinate with the EAP in an effort to diffuse his bitterness.
Ms. Lester offered her assistance to Mr. Myers to coordinate his participation in the EAP in order to assist Mr. Myers with his bitterness toward Mr. Williams and the apparent affect his bitterness was having on his work. Ms. Lester did not take the actions she took because she bore Mr. Myers any personal animosity.
At the October 10, 1988, meeting, Mr. Myers did not deny making the Comments. Mr. Myers merely informed Ms. Lester that he was in control of his emotions and did not believe that his participation in the EAP was necessary.
On October 11, 1988, Ms. Lester prepared a memorandum (hereinafter referred to as the "Memorandum") memorializing the October 10, 1988, meeting. The contents of the Memorandum are correct and trustworthy. Ms. Lester accurately reflected the events described in the Memorandum.
A copy of the Memorandum was sent to the Department's personnel office before it was provided to Mr. Myers. Ms. Ash reviewed and approved the Memorandum.
A copy of the Memorandum was provided to Mr. Myers.
It is the Department's policy to document counseling sessions and to file a copy of such documentation in the employee's personnel file. It was reasonable for the Department to document reasonable actions it takes in the management of Department employees. Consistent with the Department's policy of documenting offers to employees concerning the availability of the EAP, a copy of the Memorandum was filed in Mr. Myers' personnel file.
The Memorandum includes the following statement:
I also discussed with you my concern over some remarks you made concerning your feelings during your recent Oral Step conference. Specifically you had stated that you were emotionally upset and sat in your office "boiling". Also that you
were only human and did not know what might happen. I expressed my concern to you over what I perceive as a bitter attitude toward your work and work environment. I offered my assistance to you in coordinating with the Employee Assistance Program to perhaps diffuse your feelings. You advised this was not necessary. Marlin, should you change your mind, please let me know.
Joint exhibit 1.
Ms. Lester's actions in this matter were consistent with Department policies and procedures concerning participation in the EAP.
The Department failed to adequately explicate why documentation concerning participation in the EAP by an employee should be confidential but a direct suggestion to an individual employee that he or she should consider participating in the EAP should be documented and not kept confidential. The weight of the evidence failed to prove that a direct suggestion to an individual employee that he or she should participate in the EAP should be treated differently than actual participation in the program.
Prospective employers with whom Mr. Myers may seek employment may review Mr. Myers' personnel file, and may, therefore, read the Memorandum. The weight of the evidence failed to prove, however, that the Memorandum will have any adverse affect on Mr. Myers. No competent substantial evidence proved how prospective employers would view a suggestion that Mr. Myers participate in the EAP. Additionally, the weight of the evidence failed to prove that the information in the Memorandum is so inflammatory or untrue that prospective employees should not be informed of the actions described in the Memorandum.
Article 12 of the AFSCME Master Contract provides the following:
There shall be only one official personnel file for each employee, which shall be maintained in the central personnel office of the employing agency unless a different location is approved by the Secretary of the Department of Administration or his designee. Duplicate personnel files may be established and maintained within an agency. Such duplicate personnel files may contain part or all of the items filed in the official personnel file, but may not contain any items which are not filed in the official personnel file. Information in an employee's official personnel file shall only refer to matters concerning (affecting) the employee's job or related to his State employment.
If any derogatory material is placed in an employee's official personnel file, a copy will be sent to the employee. The employee will have the right to answer any such material filed, and his answer will be attached to the file copy.
An employee will have the right to review his own official personnel file and any duplicate personnel files at reasonable times under the supervision of the designated records custodian.
Where the Agency Head or his designee, the State Labor Relations Director, the Public Employees Relations Commission, the courts, an arbitrator,
or other statutory authority determines that a document has been placed in an employee's personnel file in error, or is otherwise invalid, such document will be placed in an envelope together with a letter of explanation. The envelope shall be sealed, stamped "NOT VALID" and returned to the employee's personnel file. Provided, however, that nothing in this provision shall grant any official, officer, or other person the authority to take any action not otherwise authorized.
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 (1989).
Mr. Myers has requested in his Petition that the Department remove the Memorandum for the following reasons:
9. Because this document may have an adverse affect upon the Petitioner's opportunity to be selected for job vacancies and promotional opportunities, is untrue, and was not prepared as an official personnel record as described in Rule 22A-11.03, F.A.C., and is otherwise
untrustworthy, its inclusion in the Petitioner's personnel file has an adverse affect upon a matter of substantial interest in him.
The burden of proving these allegations was on Mr. Myers. Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Based upon the weight of the evidence in this case Mr. Myers has failed to prove the allegations of his Petition.
First, Mr. Myers has cited no authority that would require the exclusion of the Memorandum because of any possible adverse affect upon Mr. Myers' opportunity to be selected for another job. Even if such authority existed, the weight of the evidence failed to prove that any adverse affect Ms. Lester's suggestion that Mr. Myers consider participating in the EAP might have outweighs the Department's need to document actions management takes with
Department employees. The weight of the evidence failed to prove that the information in the Memorandum is so inflammatory or untrue that prospective employers should not be informed of the actions described in the Memorandum.
Secondly, the weight of the evidence proved that there is nothing of substance in the Memorandum that is "untrue" or "untrustworthy." The weight of evidence proved that the Comments, which are at the heart of Mr. Myers' concern over the contents of the Memorandum, were made by Mr. Myers and that it was reasonable for Ms. Lester to react to the Comments by suggesting his participation in the EAP.
Finally, the weight of the evidence failed to prove that the Memorandum "was not prepared as an official personnel record as described in Rule 22A-11.03, F.A.C. . . . ." Rule 22A-11.03, Florida Administrative Code, provides, in pertinent part:
(1) Each agency shall maintain an individual personnel file for each employee which shall include, but not be limited to, the following:
A copy of the employment application.
A copy of any background investigation reports.
A copy of any medical examination reports.
A copy of all disciplinary actions.
A record reflecting each original appointment, reinstatement appointment, promotion appointment, demotion appointment, or reassignment appointment; each transfer; each separation; each layoff; each suspension; each reduction in pay; any changes in the employee's status; each change in the employee's rate of pay; each change in the employee's position title; and leaves of absence without pay or any educational leave with pay; and any other personnel transactions pertinent to the employee's employment record.
A copy of any correspondence directly related to the employee's record.
A copy of the Oath of Loyalty signed by the employee and properly notarized.,
A copy of all performance evaluations.
Although Rule 22A-11.003, Florida Administrative Code, does not expressly require that a memorandum similar to the Memorandum at issue in this case be included in an employee's personnel file, it also does not prohibit the inclusion of such a memorandum. As long as such a memorandum is truthful, relates directly to the employee's employment with the State of Florida and is not otherwise required to be kept confidential, its inclusion in a personnel file is not inconsistent with, or prohibited by, Rule 22A-11.003, Florida Administrative Code.
Mr. Myers' position in this case ignores the requirements of Article
12 of the AFSCME Master Contract. Pursuant to Article 12 of the AFSCME Master Contract the Memorandum is required to be included in Mr. Myers' personnel file. Article 12 allows agencies to have only one official personnel file for an employee who is a member of AFSCME. Article 12(B) contemplates that even "derogatory" material should be maintained in such employee personnel files. Article 12(D) does requires that material determined to be "in error" or "otherwise invalid" should be kept confidential. Even so, Article 12(D) requires that such material still be maintained in the personnel file. Therefore, even if it had been proved in this proceeding that the Memorandum was "in error" or "otherwise invalid", Article 12(D) of the Master Contract would require that the Memorandum be sealed in an envelope stamped "NOT VALID" and maintained in the personnel file.
At best, the evidence in this case raised a question as to whether the portion of the Memorandum suggesting that Mr. Myers participate in the EAP should be kept confidential in the same manner that materials dealing with an employee's actual participation in the EAP are maintained by the Department. Although the Department proved that it is the Department's policy to memorialize the fact that an employee has been offered participation in the EAP, the Department failed to sufficiently explain why it treats specific offers of EAP participation differently from actual participation in the EAP. Therefore, the Department failed to adequately explicate its policy of memorializing EAP offers to specific employees. See Florida Medical Center v. Department of Health and Rehabilitative Services, 463 So.2d 380 (Fla. 1st DCA 1985). In light of the requirements of Article 12 of the AFSCME Master Contract, however, it is concluded that, even though the Department did not explicate its policy of memorializing such offers, the inclusion of the Memorandum memorializing the offer to Mr. Myers was proper. The Department would be in violation of the AFSCME Master Contract if it did not include the Memorandum in Mr. Myers' official personnel file.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered rejecting Mr. Myers' request that
the October 11, 1988, memorandum be removed from his State of Florida personnel file and dismissing Mr. Myers' Petition with prejudice.
LARRY J. SARTIN
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
Mr. Myers' Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
3 4-5.
4 30, 35 and 38.
5 13, 32, 35 and 39.
6 14-18, 32, 35 and 39. The third sentence is not supported by the weight of the evidence. Although the last five sentences of the first paragraph, all of the second paragraph and all of the fourth paragraph of proposed finding of fact 6 are correct, they are not relevant to this proceeding. The last two paragraphs of proposed finding of fact 6 are not supported by the weight of the evidence.
7 See 42.
8-10 Although generally true, these proposed findings of fact are not relevant.
11-12 28.
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 1 and 3.
2 10.
3 7-8.
7 22.
10 33.
11 40.
12 23-24.
13 35 and 38.
16 26-27.
17 29 and 38. But see 41.
18 36.
19-20 43.
21-22 See 42.
23 28.
Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32315
Tom Gallagher, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
