GERALD M. SWINDLE, )
vs. ) CASE NO. 90-5803
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on December 14, 1990, at Bartow, Florida.
For Petitioner: Richard D. Mars, Esquire
For Respondent: Joseph W. Carvin, Esquire
Whether Petitioner was wrongfully dismissed from his position as Field Service Technician II by the Southwest Florida Water Management District.
By Petition for Reinstatement dated August 29, 1990, Gerald M. Swindle, Petitioner, seeks reinstatement to his job with the Southwest Florida Water Management District (SFWMD), Respondent. As grounds therefor, it is alleged that Petitioner was dismissed because he reported wrongdoing on the part of his superiors in violation of the Florida Whistle Blower's Act. It is further alleged that Respondent failed to give Petitioner corrective counseling and failed to comply with its rules and regulations.
At the hearing, Petitioner called four witnesses, including himself, Respondent called six witnesses, and 34 exhibits were admitted into evidence. Exhibit 34 is a late-filed exhibit of a deposition to be submitted by Respondent. This exhibit was filed February 25, 1991. Petitioner was granted
permission to file a rebuttal deposition, but none was forthcoming. Proposed findings have been submitted by the parties. Proposed findings not accepted are noted in the Appendix attached hereto and made a part hereof.
Gerald M. Swindle was employed by the SFWMD on May 15, 1974 as a Water Resource Technician, and remained employed by SFWMD until he was terminated July 25, 1990.
In 1977, Petitioner was counseled regarding his performance of duty needing improvement (Exhibit 11).
In 1978, Petitioner violated a verbal order not to become involved in enforcement matters with E. N. Willis. This order was reiterated in Exhibit 13 dated October 24, 1978.
In 1981, Petitioner was placed on probation which ended November 15, 1981 (Exhibit 15). During this probationary period, SFWMD continued to receive complaints regarding personal use of the district vehicle assigned to Petitioner (Exhibit 15).
In his evaluation report dated 11/23/81, Petitioner was given an overall grade of satisfactory, although he was marked slightly below average on
6 of the 11 items on which rated.
In 1988, a reorganization changed the job description of Water Resource Technician to Field Service Technician with a higher pay grade. Petitioner was not reclassified into this position when the other Water Resource Technicians were reclassified because his superiors felt he was deficient in some of the skills required of a Field Service Technician (Exhibit 19).
By letter dated November 4, 1988 (Exhibit 17), Petitioner was advised of the need to make improvements in reading and interpreting blueprints, site plans and as-builts; in the production of accurate and timely reports; in basic knowledge of district rules; and in effective communication.
By memorandum dated March 15, 1989, William Hartman, Petitioner's supervisor, submitted a memorandum to the Director, Bartow Permitting Department, advising that he, and others, had spent time with Petitioner reviewing and interpreting blueprints, as-builts, aerial maps, etc., that Petitioner had attended workshops, and that some improvement was noted.
By memorandum dated April 10, 1989 (Exhibit 19), the Director, Bartow Permitting Department, recommended Swindle not be promoted to Field Services Technician II.
In 1989, Petitioner was suspended from duty without pay for two weeks (80 hours) for an incident involving playing cards at a public park for some two hours during working hours and falsifying a log entry to conceal the time so spent (Exhibit 22).
In Swindle's evaluation for the first quarter of 1989, his supervisor, William Hartman, gave him an overall evaluation of Effective, although in the narrative he noted that what he observed most about Petitioner is his apparent paranoia over "someone out to get him." The narrative also referred to his weak areas of preparing investigative reports and surveying.
In his comments to this report, Petitioner generally denied all of the adverse comments and contended that, if given the proper training, he could do the job in a wholly satisfactory manner.
About this time, Petitioner was getting the impression that his present supervisors were looking for grounds to dismiss him.
In the April 1990 evaluation of Petitioner (Exhibit 3), he was given an overall evaluation of "Acceptable," but he was marked in the lowest category for meeting minimum requirements in quantity of work, stability, and requiring more than average instructions. Most of the other categories were marked below average.
A nominal supervisor at this time, Jim Calandra, was a contributor to the April 1990 evaluation, and in his comments pointed out that considering his time with the Department, the training received, and comments from his superiors over the years, Petitioner should possess "better and more varied technical skills needed for his FST II position." Calandra further concluded that "Gerry will inevitably blame any of his technical deficiencies on lack of training provided by the District or the absence of cooperation from others."
The comments of Petitioner's immediate supervisor, Steve Stokes, further noted Petitioner's deficiencies in preparing field investigation reports and in his log keeping. Also the comments of Robert Viertel, Director, Permitting Department, attached to this evaluation, expressed his concern about the lack of initiative, dependability, stability and alertness reflected in the evaluation. To more rapidly gauge the adequacy of Swindle's efforts to improve, Viertel recommended by-monthly evaluations of Petitioner.
In his comments to this evaluation (Exhibit 4), Petitioner essentially denied all of the adverse comments made on this evaluation, and blamed the poor evaluation on an "intent ... to upset me, break down my morale and cause me to loose [sic] faith in my ability." In commenting on those factors reflecting poor utilization of his time, Petitioner contended he uses his time better than some others in the Bartow office and specifically alleged that Calandra conducted much personal business on District time, used Department vehicles for personal business and used Petitioner to pick up personal items for Calandra during regular business hours.
These comments regarding Calandra led to the memorandum dated 5/15/90 from Stokes to Swindle (Exhibit 8) in which Swindle was directed to be specific as to times and places regarding the allegations. Petitioner's response is a part of Exhibit 8.
The charges made by Petitioner against Calandra were investigated, and some of these charges were confirmed in the investigation. Calandra was given an oral reprimand for conducting personal business during District working time and for using District vehicles on personal business.
Petitioner apparently contends that his actions in June 1990 in stopping the dredging in a canal in Peace Creek because no permit was issued also affected his dismissal as this constituted "whistle blowing" by him. It was determined by Petitioner's supervisor that no permit was required for this dredging, and no further record or notation of this incident was presented which, in any wise, was shown to be a factor in his dismissal.
On the special evaluation of Swindle dated July 20, 1990, Petitioner was marked unsatisfactory in 7 of the 16 categories on which he was rated, and the overall evaluation was "unacceptable." In his comments, Stokes noted that the April evaluation of "acceptable" was based partly on the fact that "Stokes and Viertel had been Swindle's supervisors for only three months, and since Swindle was a longtime employee of the District they decided to rate him marginally satisfactory." Stokes noted no improvement in Swindle's performance during the period between April and July, and cited specific incidents of unsatisfactory performance.
In Viertel's comments on this evaluation, he concurred in the evaluation and recommended biweekly evaluations following which, if Petitioner's performance remained unacceptable, that he be terminated.
Facing the likelihood of dismissal, Petitioner went on sick leave during July 1990 contending he was under stress. He submitted a letter from Dr. Jones at the Peace River Crisis Center confirming Swindle had been seen for stress-related adjustment (Exhibit 7).
During this time, Petitioner, when contacted by District personnel regarding his absence from work, referred to the Jacksonville, Florida, incident in which a disgruntled (and mentally disturbed) employee had entered the workplace with an AK-47 and killed several people. This led the person to whom Petitioner relayed this message to think Petitioner may be contemplating similar action.
Petitioner's last day at work was July 25, 1990, after which he took leave. He was dismissed sometime after July 25, 1990.
The allegations Petitioner made against Calandra were not a factor in a decision of SWFMD to dismiss Petitioner.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Petitioner contends that he was terminated because he reported violations of laws and regulations by his supervisor at the SFWMD. He, therefore, claims protection under the Whistle BLower's Act of 1986, Section 112.3187, Florida Statutes.
The legislative intent as expressed in Section 112.3187(2) is to prevent agencies or independent contractors from taking retaliatory action against any person who discloses information to an appropriate agency alleging improper use of governmental office, gross waste of funds, or any other abuse or neglect of duty on the part of an agency, public officer, or employee.
Section 112.3187 further provides in pertinent part:
Actions prohibited.-
An agency or independent contractor shall not dismiss, discipline, or take any other adverse personnel action against an employee for disclosing information pursuant to the provisions of this section.
An agency or independent contractor shall not take any adverse action that affects the rights or interests of a person in retaliation for the person's disclosure of information under this section.
Nature of information disclosed.- The information disclosed under this section shall include:
Any violation or suspected violation of any federal, state or local law, rule, or regulation committed by an agency or independent contractor that creates and presents a substantial and specific danger to the public's health, safety, or welfare.
Any act or suspected act of malfeasance, misfeasance, or neglect of duty committed by an agency.
In interpreting statutes, the cardinal rule is that where legislative intent is plain and unambiguous, there is no necessity for any construction or interpretation of the statute, and courts need only to give effect to the plain meaning of its terms. State v. Egan, 228 So.2d 1 (Fla. 1973).
Applying that principal to the intent as expressed by the Legislature, it is clear that an employee is included within the term agency. Accordingly, if Petitioner was dismissed from his position as FTS II because he reported neglect of duty on the part of a fellow employee (or a supervisor), he was subject to unlawful discrimination in employment within the meaning of this Act.
In a discrimination case, the burden is on the complaining party to establish a prima facie case of discrimination. Here, the prima facie case of discrimination can be established by showing Petitioner is in the protected class and was dismissed because he "blew the whistle."
Proving a prima facie case serves to eliminate the most common nondiscriminatory reasons for the Petitioner's disparate treatment. See, Teamsters v. United States, 431 U.S. 324, 358 and n. 44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employer from which discriminatory animus is inferred because experience has proven that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason, in a business setting. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
Assuming, arguendo, that Petitioner establishes the prima facie case, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reasons for the challenged employment decision.
The employer is required only "to produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory animus." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 257 (1981). The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . It is sufficient
if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Id. at 254-255. This burden is characterized as "exceedingly light." Perryman v. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir. 1983).
Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to the Petitioner who must prove that the reasons offered by the employer for its decision is not the true reason, but is merely a pretext. The employer need not prove that it was actually motivated by the articulated nondiscriminatory reasons or that the hired applicant was more qualified than the plaintiff. Texas Department of Community Affairs v. Burdine, supra at 257-258. In Burdine the Supreme Court emphasized that the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Id. at 253.
Applying these principals to the facts here found, it is clear that shortly before his dismissal Petitioner made allegations that a fellow employee and part-time supervisor had violated department rules. These allegations include malfeasance, misfeasance or neglect of duty on the part of the employee. Assuming that the Act includes employee as synonymous with agency (as above found), Petitioner thereby established a prima facie case of discrimination in employment, and the burden of persuasion shifted to the employer to articulate a nondiscriminatory reason for Petitioner's dismissal.
Petitioner's prima facie case here presented is somewhat flawed by reason of the fact that no evidence was presented that Petitioner's allegations against Calandra had any effect on Petitioner's dismissal, and a factual finding of this issue was made in finding 23 above. Accordingly, the fact that Petitioner was discharged shortly after he made allegations of misfeasance against Calandra constitutes a weak, if any, prima facie case because experience has not proved it is likely such actions may result in dismissal.
At the time Petitioner made the allegations against Calandra (which led to disciplinary action taken against Calandra), he was being given low evaluation marks because of his own poor performance, and he made the allegations against Calandra not to blow the whistle on Calandra, but to show he was not the only one not following Department rules.
If we assume arguendo, that Petitioner established a prima facie case of discrimination, Respondent has produced a plethora of evidence that Petitioner's dismissal was based entirely upon his poor performance, and he would have been dismissed regardless of the allegations he made against Calandra. No evidence was submitted by Petitioner to show his poor performance record was a mere pretext for this dismissal.
From the foregoing, it is concluded that Petitioner was dismissed from employment by SFWMD because of a long history of poor performance evaluations, and the charges he made alleging misconduct of a fellow employee played no material part in the decision of SFWMD to dismiss him.
It is recommended that a Final Order be entered finding Gerald M. Swindle was dismissed as a Field Services Technician II by SFWMD because of poor performance, and Swindle's allegations made against a fellow employee was not a proximate cause of his dismissal.
ENTERED this 28th day of February, 1991, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1991.
13. Rejected as irrelevant.
Proposed findings submitted by Respondent are generally accepted. Those not included herein were deemed unnecessary to he results reached.
Richard D. Mars, Esquire Post Office Box 1276 Bartow, FL 33830
Joseph W. Carvin, Esquire Post Office Box 1427 Tampa, FL 33601
Peter G. Hubbell Executive Director Southwest Florida Water
