STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KATHRYN C. BOLLINGER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5787

) PALM BEACH COUNTY and ) LAURA THOMPSON, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on January 20, 1995, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Lynne P. D'Iorio, Esquire

5301 North Federal Highway, Suite 150 Boca Raton, Florida 33487

For Respondent: Maureen E. Cullen, Esquire

County Attorney's Office of Palm Beach County

301 North Olive Avenue, Suite 601 West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

The issue presented is whether Respondents have committed an unlawful employment practice by retaliating against Petitioner for Petitioner's earlier complaint of handicap discrimination.

PRELIMINARY STATEMENT

On June 29, 1993, Petitioner, Kathryn C. Bollinger, filed with the Florida Commission on Human Relations a complaint alleging that Respondents Palm Beach County and Laura Thompson had retaliated against Petitioner for Petitioner's filing of an earlier complaint in that Petitioner had been issued a written reprimand by Respondents. On July 1, 1994, the executive director of the Commission issued a determination that there was no reasonable cause to believe that an unlawful employment practice had occurred. Petitioner filed her Petition for Relief from that determination, expanding her allegation to include her subsequent termination of employment by Respondent Palm Beach County. The Petition for Relief was subsequently transferred to the Division of Administrative Hearings to conduct a formal proceeding.

Petitioner testified on her own behalf. Respondents presented the testimony of Laura Thompson, Shauna Ihle, and Richard Walesky. Additionally, Respondents' Exhibits numbered 1-4 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner has been disabled since 1981, when she suffered a stroke. Petitioner was employed by Respondent Palm Beach County on September 10, 1984, as a receptionist in its Public Safety Department.

   
   

2. Richard Walesky is the director of Palm Beach County's Department of Environmental Resources Management. The County started that Department in October of 1987, and Walesky became the Department's first director and first employee. That Department has expanded substantially since its creation, having grown to approximately 30 employees after the first year and approximately 100 employees currently.

   
   

3. In January of 1988, Walesky hired Petitioner as a fiscal clerk in the Department of Environmental Resources Management. Petitioner was in a wheelchair at the time, and Walesky was aware that the Petitioner was handicapped. He hired her because she was qualified by experience and because she had an "upbeat" personality. Her job description included receptionist duties and answering telephones, purchasing, general bookkeeping, and reconciliation of the Department's books and records. The only accommodation requested by Petitioner was to have a rolling file cabinet on the right-hand side of her work station. With her filing cabinet in that location and her electric wheelchair, she needed no other accommodation.

   
   

4. Initially, Walesky supervised Petitioner but turned that responsibility over to the Department's office manager in approximately 1989. In that same year, Petitioner's title changed from fiscal clerk to fiscal specialist.

   
   

5. Initially, Walesky was not knowledgeable about fiscal procedures and therefore could not assess Petitioner's performance level. In other words, he did not know if the problems he was experiencing were normal. He did know that Petitioner was not reconciling the books as required and, therefore, neither of them knew how much of their budget had been spent and how much was still available. Further, due to the slow processing of paperwork in his Department, the County was not able to take advantage of discounts for timely payment of bills. In one year, the slow processing of paperwork by Petitioner resulted in approximately $20,000 worth of bills not being paid during the fiscal year when the money for payment was budgeted but rather being paid during the following fiscal year when money had not been budgeted to pay for those items. Reconciling the Department's books and processing the paperwork for payment of invoices were included in Petitioner's assigned duties.

   
   

6. In spite of the seriousness of those deficiencies, Walesky and the office manager who subsequently supervised Petitioner did not give Petitioner negative annual performance evaluations. Rather, on her 1988 performance evaluation Petitioner was rated as meeting or partially exceeding job requirements, and the same rating was given to Petitioner in 1989. Petitioner's 1990 annual performance evaluation resulted in her achieving a superior rating.

7. As the Department continued to grow, Walesky hired more staff. In October of 1990, he hired Laura Thompson as a Financial Analyst II.

   
   

8. Thompson, who had a master's degree in financial management, was given the responsibility of general oversight of the financial aspects of the Department. That responsibility included being Petitioner's supervisor. During Thompson's first year of employment, Petitioner retained her same responsibility for purchasing and processing of invoices, and Thompson was primarily responsible for other areas. During her first year, Thompson had limited knowledge of Petitioner's work and gave Petitioner a superior rating on Petitioner's 1990-1991 performance evaluation.

   
   

9. Yet, Thompson was aware that there were problems in Petitioner's performance. Thompson requested during her second year of employment that Walesky put her directly in charge of purchasing so she could become more familiar with the purchasing system and better deal with the problems surrounding Petitioner's job duties. Walesky agreed with that request and did so. During that year, Thompson was better able to identify Petitioner's deficiencies.

   
   

10. At the end of that fiscal year, in September of 1992, Thompson gave Petitioner the same superior rating but in the comments section of that evaluation, Thompson specified the areas in which Petitioner needed to show improvement.

    
    

11. Thompson discussed with her Petitioner's annual performance evaluation, with specific attention to each item noted as needing improvement. She told Petitioner to organize Petitioner's work area by labeling file cabinets and file folders, by removing from her work area paperwork which was three or four years old and placing those documents in properly marked file folders, and by placing active paperwork on her desk rather than keeping active work in her desk drawers.

    
    

12. As to the second area needing improvement, Thompson told Petitioner to eliminate duplicate records. It had been earlier discovered that Petitioner was keeping duplicate records, that is, she was keeping her own ledgers which duplicated the County's ledgers being done by the automated system. Not only were duplicate records not needed, they were not permitted since there was a County policy that for a Department to keep duplicate records, permission must be obtained from the Budget Office, and the Department did not have that permission. Further, Thompson believed that Petitioner keeping her own ledgers consumed approximately one half of Petitioner's work time.

    
    

13. The third area of concern was that Petitioner had not received training in the County's automated accounting and purchasing system. Knowledge of that Local Government Financial System a/k/a LGFS was imperative for an employee in Petitioner's position. Training in LGFS was available to Petitioner during working hours at her job site at the County's expense, and Thompson specifically told Petitioner that it was.

    
    

14. Thompson offered Petitioner assistance in meeting the outlined goals in those three areas needing improvement. However, Petitioner did not need any assistance according to Petitioner.

    
    

15. Thereafter, there was no improvement in any of those specified areas. Petitioner did, however, request that her position as a fiscal specialist be upgraded. Walesky, who had been engaging in ongoing discussions with Thompson

    regarding Petitioner's performance problems and Petitioner's resistance to improvement in the specified areas, referred that request for re-classification to the County's Personnel Department. He and Thompson specifically did not give any recommendation to the Personnel Department as to whether Petitioner's request should be approved or denied. The Personnel Department conducted an independent audit and determined that although Petitioner's work load had increased, her job duties had remained the same and there was no basis for re- classifying her position. Petitioner's request was denied on November 6, 1992.

    
    

16. Due to Petitioner's failure to make the required changes in the areas specified, Thompson gave Petitioner a memorandum in December of 1992 since the numerous discussions she had had with Petitioner along the way had not been effective. That memorandum directed Petitioner to follow the Policies and Procedures Memorandum regarding the price agreements. She attached to her memorandum a copy of the referenced Memorandum. Thompson discussed with Petitioner the memorandum she issued and offered her assistance, but Petitioner did not request any assistance in carrying out the instructions contained in Thompson's memorandum to her.

    
    

17. Thereafter, Thompson noted no improvement and issued a memorandum dated January 26, 1993, specifying problems noted by Thompson and specifying assignments given to Petitioner which Petitioner had not accomplished. The memorandum requested that Petitioner advise Thompson if there were any reasons that Petitioner could not accomplish the tasks, offered assistance in helping Petitioner attain the goals, and advised Petitioner that if she continued to fail to respond to those areas of improvement required of her, she would be issued a formal notice of reprimand for failure to perform assigned duties and/or to follow directions.

    
    

18. Thereafter, Petitioner did not demonstrate any particular effort to make improvements in the designated areas. Her work area remained cluttered, she continued maintaining duplicate books, and she failed to obtain the required LGFS training. Thompson continued to keep Walesky advised as to Petitioner's failure to demonstrate improvement and to comply with directives. Thompson also contacted the County's Personnel Department regarding Petitioner's performance to discuss her options and the appropriate procedures.

    
    

19. In May of 1993, Petitioner filed a complaint with the Florida Commission on Human Relations alleging that she had been discriminated against based upon her handicap by the County's failure to re-classify her position. A determination was made on that complaint that there was no reasonable cause to believe that an unlawful employment practice had occurred, and Petitioner did not contest that determination.

    
    

20. When Petitioner filed her complaint in May of 1993, the Commission sent notice to the County that a complaint had been filed, although a copy of the complaint itself was not forwarded to the County until July of 1993. When the notice was received by the County in May, it was forwarded to the County's Personnel Department in accordance with County policy. Walesky was advised that the notice had been received, and he immediately went to Petitioner and asked her what the problem was and what he could do to solve it. Petitioner advised Walesky that the problem was the failure to re-classify her position months earlier.

    
    

21. Laura Thompson, however, was not advised by anyone that Petitioner had filed a complaint with the Florida Commission on Human Relations. She did not become aware of that complaint until the actual complaint was received by the

    County from the Commission in July of 1993. Thompson found out about both the existence of the complaint and the contents of the complaint in July when the County's Personnel Department requested her to respond to it.

    
    

22. On June 8, 1993, Thompson gave Petitioner a written reprimand. That reprimand was reviewed in advance by the Personnel Department and by Walesky, who signed it without any consideration that Petitioner had filed a discrimination complaint. At the meeting wherein Petitioner was given the reprimand, Richard Morelli, the Department's office manager and Petitioner's former supervisor, was present at Thompson's request. The reprimand was for failure to perform assigned duties and to follow instructions. Thompson discussed the reprimand with Petitioner and then requested that Petitioner sign it. Petitioner did so and left it on Thompson's desk.

    
    

23. Thompson saw that Petitioner had written on the reprimand, "I believe this is retaliation". Thompson went to Petitioner and asked Petitioner what she meant by her comment. Petitioner's response to Thompson was that Petitioner did not have to tell her, and she did not tell her.

    
    

24. Subsequent to the issuance of the reprimand, Petitioner exhibited no significant improvement in her performance. Petitioner's work area did become more organized because Thompson personally organized Petitioner's files for her and cleaned out approximately 50 percent of Petitioner's work area.

    
    

25. Thompson continued to discuss with Petitioner her directive that Petitioner eliminate the duplicate records Petitioner was keeping. At one point, she asked Petitioner to describe to Thompson what books she was keeping and the purpose for each specific book. Petitioner advised Thompson that she did not have time to tell her that information. Thompson instructed Petitioner that for the remaining four hours of that work day and for the entire following work day Petitioner was to do nothing else during that 12-hour time slot except prepare a description of the books she was keeping. During that 12 hours Petitioner worked on other tasks and failed to do the one task she had been instructed to do to the exclusion of all others.

    
    

26. In September of 1993, Petitioner received an annual performance evaluation with a rating of "needs improvement". The evaluation was discussed with Petitioner by Thompson, and Petitioner recognized the importance of reaching a satisfactory level of performance to keep her job. Petitioner was given a 90-day improvement plan, with meetings scheduled with Thompson and Walesky at the 30-, 60-, and 90-day intervals. During that time period, Petitioner accepted none of the offers for extra assistance. At the end of the 90-day improvement plan, Petitioner had not demonstrated sufficient progress to reach a satisfactory level of performance. For example, she still had not obtained the LGFS training she was directed to obtain.

    
    

27. At the end of the 90-day period Petitioner was terminated from her employment with the concurrence of Walesky, Thompson, and the County's Personnel Department. Yet, Petitioner was given an additional 30-days of paid leave time in which to obtain another job. None of the other positions located for Petitioner by the County were satisfactory to her, including the position she had held before being hired by Walesky.

    
    

28. The County's Personnel Department employs an equal employment opportunity and affirmative action specialist, who is responsible for handling all discrimination complaints and for training managers in equal opportunity and affirmative action requirements. Shauna Ihle was hired by the County for that

    position in March of 1990. She met Petitioner immediately after being employed when Petitioner came to see her regarding different available positions that Petitioner was applying for or to request assistance. She received the May 1993 notice that Petitioner had filed a complaint with the Commission on Human Relations. From the time that Petitioner's request for re-classification of her position was denied on November 6, 1992, until Petitioner filed her complaint on approximately May 3, 1993, Petitioner had never discussed with Ihle any dissatisfaction or perceived discrimination regarding the County's denial of that request for re-classification.

    
    

29. When Petitioner received her "needs improvement" performance evaluation in September of 1993, Petitioner came to Ihle to discuss that evaluation. Although Petitioner stated that the evaluation was not appropriate, as to each specific item in the evaluation Petitioner admitted to Ihle that the complaint was legitimate. Petitioner even admitted that she agreed with the reprimand that had been given to her because she was not processing paperwork correctly or following the correct procedures. Petitioner also told Ihle that some of the things Thompson wanted her to do were stupid, and Ihle advised Petitioner that she should do those things anyway. Throughout the time that Ihle counseled with Petitioner, she inquired if Petitioner had any limitations preventing her from performing her duties or if she needed any help to perform her duties. Petitioner's position was that she did not need any help and had no limitations which interfered with her job performance.

    
    

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

31. Section 760.10(1)(a), Florida Statutes, deems it to be an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual because of such individual's handicap, and Section 760.10(7) makes it an unlawful employment practice for an employer to discriminate against any person because that person has opposed an unlawful employment practice or because that person has made such a charge. Section 760.02(7), Florida Statutes, defines an employer to be any person employing 15 or more employees and any agent of such a person.

    
    

32. When Petitioner filed the subject complaint with the Commission on Human Relations, she contended that she was retaliated against by Respondents when she received a written reprimand because she had filed her initial complaint of handicap discrimination with the Commission. By the time Petitioner filed her Petition for Relief in this cause, she contended that she was also terminated because she filed her original complaint with the Commission in 1993. Petitioner has failed to meet her burden of proof.

    
    

33. The uncontroverted facts reveal that Petitioner filed a charge of discrimination with the Commission in May of 1993, alleging that she had been denied a position upgrade in November of 1992 due to her handicap and that she was subsequently reprimanded and terminated. However, the evidence reveals that Petitioner was formally notified in writing of performance deficiencies in September of 1992, based upon her failure to properly carry out her job duties. Subsequent memoranda were issued to Petitioner and discussed with her regarding her failure to improve her job performance and to carry out directives given to her. She was advised in writing that her continued failure to improve would result in a written reprimand, and such reprimand was subsequently given to her.

    She continued to fail to follow proper procedures and carry out specific directives and was advised that she had 90 days in which to show improvement or be terminated. She failed to sufficiently improve, and termination resulted.

    Throughout that time period Petitioner was offered additional assistance by her supervisor, by the Director of the Department, and by the County's equal employment opportunity specialist. Petitioner never indicated the need for additional assistance; rather, she advised the equal employment opportunity specialist that she did not need assistance and that the problems she was having at work were not related to any physical limitations.

    
    

34. The record is devoid of any evidence establishing or allowing a reasonable inference that the issuance of the reprimand was pretextual. At the time that the reprimand was issued, Thompson had no knowledge that Petitioner had filed a discrimination charge. Although Walesky and the County's equal employment opportunity specialist knew that a charge had been filed, they had not seen the complaint Petitioner had filed but had merely received a notice that a charge had been filed. When Walesky learned of that charge, he immediately went to Petitioner to ask her what the problem was and what he could do to help, and Petitioner advised him it was because of the denial of her position upgrade. Walesky had not made the decision to deny Petitioner's request for re-classification, and, when he approved and signed Petitioner's reprimand the following month, it did not occur to him that there was any relationship between the reprimand Petitioner had earned and the complaint she had filed.

    
    

35. Petitioner argues that it is reasonable to conclude that she was retaliated against by Respondents for filing her discrimination charge since she was reprimanded thereafter and had never before received a negative evaluation. First, that is not an accurate statement of the evidence since Petitioner had been consistently advised in writing and verbally for the nine months prior to her receipt of the reprimand that her performance was deficient and needed improvement in specific areas. Second, Petitioner's reliance on the good evaluations she received from 1988 until 1992 is misplaced since the evidence in this record reveals that although her performance evaluations were superior, her work performance was not.

    
    

36. Although the parties have not disputed that Petitioner has a handicap, filed a discrimination charge, and was subsequently reprimanded and then terminated, Respondents have proven by clear and convincing evidence that the reprimand and termination resulted from legitimate, non-discriminatory reasons. Finally, Petitioner has not shown those reasons to be pretextual.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Respondents have not

committed an unlawful employment practice and dismissing the Petition for Relief filed against them.

DONE and ENTERED this 24th day of April, 1995, at Tallahassee, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1995.

APPENDIX TO RECOMMENDED ORDER

1. Petitioner's proposed findings of fact numbered 1-3, 5, 10-12, and 16 are adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed findings of fact numbered 4, 6-9, 13-15, and 17-

   21 have been rejected as not being supported by the weight of the competent evidence in this cause.

3. Respondents' proposed findings of fact numbered 1-30, and 32-41 have been adopted either verbatim or in substance in this Recommended Order.

4. Respondents' proposed finding of fact numbered 31 has been rejected as not constituting a finding of fact but rather as constituting recitation of the testimony.

COPIES FURNISHED:

Lynne P. D'Iorio, Esquire

5301 North Federal Highway, Suite 150 Boca Raton, Florida 33487

Maureen E. Cullen, Esquire County Attorney's Office of

Palm Beach County

301 North Olive Avenue, Suite 601 West Palm Beach, Florida 33401

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 94-005787

Orders for Case No: 94-005787