STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT L. JONES, )

)

Petitioner, )

)

vs. ) Case No. 96-4162

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 12-13, 1997, and June 27, 1997, in Lake City, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Diane B. McPherson, Esquire

706 Northeast 5th Avenue Gainesville, Florida 32601

For Respondent: Charles G. Gardner, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

The issues are whether Respondent committed an unlawful employment practice against Petitioner, and if so, what corrective action should be taken.

PRELIMINARY STATEMENT

On July 13, 1995, Petitioner Robert L. Jones filed a pro se

Charge of Discrimination with the Florida Commission on Human Relations (FCHR). Said complaint alleged that Respondent Department of Transportation (DOT) had discriminated against Petitioner on the basis of his race, gender, and disability in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (1993). The complaint specifically alleged that Respondent DOT had discriminated against Petitioner by reprimanding him, giving him a negative evaluation, intimidating him, giving him different terms and conditions of employment, and not accommodating his disability.1

On June 6, 1996, FCHR determined that there was no reasonable cause to believe that Respondent DOT had committed an unlawful employment practice against Petitioner.

On July 25, 1996, Petitioner filed a pro se Petition for Relief with FCHR. FCHR referred this petition to the Division of Administrative Hearings on September 3, 1996.

The Petition for Relief contained allegations of discriminatory actions occurring on and before June 16, 1995. It also contained allegations of retaliation occurring after that date, including the following: (a) Respondent DOT failed to conduct the investigation of Petitioner's employment discrimination charge in accordance with the agency's policy and procedures; and (b) Respondent DOT demoted Petitioner from his position as an Accounting Services Supervisor to an Accountant IV, his former position.

On October 1, 1996, Petitioner filed a pro se Petition for Relief from an Unlawful Employment Practice directly with the Division of Administrative Hearings. Said petition named Linda Green as a Respondent along with Respondent DOT. The petition repeated allegations concerning Respondent's

discriminatory and retaliatory actions occurring up through July 25, 1996.

On October 2, 1996, the undersigned issued a Notice of Hearing. Said notice scheduled the case for formal hearing on February 4, 1997. An Amended Notice of Hearing scheduled the case for hearing on February 3-4, 1997.

On January 14, 1996, Petitioner filed a Motion for Continuance. The undersigned subsequently issued an order granting a continuance and rescheduling the hearing on April 14-15, 1997.

On February 19, 1997, Petitioner filed Petitioner's First Amended Complaint. This was the first pleading prepared by Petitioner's counsel. The amended complaint named Respondent DOT and Linda Green, in her individual capacity and in her official capacity as District Financial Services Administrator, as respondents.

The amended complaint repeated allegations concerning discriminatory actions occurring on or before June 16, 1995. It also included allegations that Respondent retaliated against Petitioner in the following ways: (a) by misrepresenting

material facts in reply to an ongoing investigation of discrimination charges; (b) by subsequently disciplining Petitioner more harshly than other employees similarly situated;

(c) by denying Petitioner job perquisites provided to non- minority employees; and (d) by relieving Petitioner of the job responsibility of supervising both minority and non-minority employees and reducing him to supervising only minority employees.

On February 24, 1997, Respondent DOT filed the following three pleadings: (a) Motion to Quash Subpoena and Request for an Expedited Ruling; (b) Motion for Protective Order and Request for an Expedited Ruling; and (c) Motion to Strike Petitioner's First Amended Complaint and Request for Expedited Ruling. Respondent DOT filed a Notice of Scrivener's Error on February 26, 1997.

On February 28, 1997, the undersigned heard oral arguments on the above-referenced motions. During oral argument, Respondent DOT withdrew its motions to quash a subpoena and for a protective order.

The undersigned subsequently issued an order dated March 3, 1997, denying Respondent DOT's Motion to Strike Petitioner's First Amended Complaint. Said order directed the parties to file memorandums to support their respective positions on the question whether Ms. Green could be joined as a Respondent in her individual capacity.

On March 14, 1997, Petitioner filed a Memorandum of Law in

Support of Motion to Amend Style of Case. Respondent DOT filed a responsive memorandum on March 24, 1997.

On March 28, 1997, the undersigned issued an Order Denying Motion to Amend Style to Include Linda Green as a Respondent in Her Individual and Professional Capacity.

Petitioner filed a Motion for Continuance and Expedited Ruling on April 11, 1997. The undersigned granted this motion and rescheduled the hearing for June 12-13, 1997.

Respondent filed a Motion in Limine on May 13, 1997.

Petitioner filed a Response in Opposition to Respondent's Motion in Limine on May 16, 1997.

On May 19, 1997, Respondent filed a Motion to Strike and a Response to Petitioner's Motion in Limine. The Division of Administrative Hearings had not received a written copy of Petitioner's Motion in Limine at that time.2

On June 3, 1997, the undersigned heard oral argument on all outstanding motions. During the telephone conference, the undersigned denied the following motions without prejudice:

1. Petitioner's Motion in Limine; (b) Respondent's Motion to Strike; and (c) Respondent's Motion in Limine.

   The parties could not present their cases in two days as scheduled. At the conclusion of the hearing on June 13, 1997, the parties agreed to reconvene the proceeding on June 27, 1997.

   During the hearing, Petitioner testified on his own behalf and presented the testimony of 14 witnesses. Petitioner presented 19 exhibits which were admitted into evidence.

   Respondent presented the testimony of 13 witnesses.

   
   

   Respondent presented the following exhibits which were accepted into evidence: R1-R6, R11-R13, R15-R19, R21-R26, R29-R31, R33-

   R36, R38-R46, R48-R49, R53, R58, R61-R76, R79-R81, R86-R87, R89- R92, R94, R96-R97, R99-R105, R108-R113.

   On August 1, 1997, Respondent filed a post-hearing

   
   

   deposition which included one exhibit. The deposition, together with its exhibit, is hereby admitted into evidence.

   On August 7, 1997, Petitioner requested an extension of time in which to file his proposed recommended order. Respondent consented to the request. Accordingly, the undersigned issued an order granting the requested extension on August 8, 1997.

   The court reporter filed the first three volumes of transcript on June 6, 1997. The second two volumes were filed on July 30, 1997. The final volume of transcript was filed on August 12, 1997.

   The parties filed their proposed recommended orders on September 15, 1997.

   It is apparent from review of the record that Respondent is not prejudiced by Petitioner's failure to file a separate Charge of Discrimination for alleged retaliation occurring on or before July 25, 1996. Petitioner included some allegations of retaliatory actions in his pro se Petition for Relief filed with FCHR on that date. Accordingly, this Recommended Order includes consideration of all allegations concerning retaliatory actions which were presented in the pleadings as occurring on or before July 25, 1996.3

   FINDINGS OF FACT

   
   

   1. Petitioner is a forty-one-year-old black male. He is a 1977 graduate of the University of Florida with a bachelor's degree in Business Administration. His undergraduate major was Finance. Petitioner has approximately 30 credit hours in Accounting from the University of North Florida, which he earned between 1983 and 1988.

   2. Petitioner is currently enrolled in the University of North Florida's Masters of Public Administration program. He has completed 30 of the 39 required credit hours in that program.

   3. From November of 1979 to March of 1991, Petitioner worked for Occidental Chemical Company as an accountant. After leaving this job, Petitioner was self-employed from April of 1991 to December of 1991.

   4. Respondent's District Two office in Lake City, Florida, hired Petitioner on March 6, 1992, as a Purchasing Agent I. Respondent hired Petitioner under administrative rules pertaining to career service employees as promulgated by the Department of Management Services.

   5. Petitioner received a copy of Respondent's disciplinary and conduct standards when he was hired.

   6. Petitioner worked as a Purchasing Agent I until September of 1992. His salary during that time was $609.00 bi-weekly.

   7. In September of 1992, Respondent promoted Petitioner to the position of Accountant II in Respondent's Office of Financial Services. His bi-weekly salary was $752.91, a 23.5 percent increase.

   8. As soon as Petitioner became a member of the fiscal section, he received five weeks of intensive training relative to vouchers. This training was necessary because Respondent's central office was beginning to relinquish many functions to its district financial offices, including the vouchering process.

   9. Petitioner's direct supervisor in the fiscal section was Faye McClellan. She occupied the position of Accounting Services Supervisor I. Petitioner was indirectly supervised by

      David Sheffield, District Financial Administrator.

      
      

   10. On March 1, 1993, David Sheffield hired Karin Davis Charron, a white female, as an Accountant I in Respondent's Office of Financial Services. Her salary was $674.14 bi-weekly, or ten percent above the minimum for an Accountant I.

   11. Prior to her employment with Respondent, Ms. Charron had 15 credit hours in Business Administration and Accounting, which she earned at Lake City Community College. Her prior work experience included the following: (a) head cashier at a food store, October of 1983 to June of 1984; (b) accountant/bookkeeper in private business, July of 1984 to September of 1985;

       (c) Fiscal Assistant I, Department of Corrections, November of 1985 to April of 1987; (d) Secretary Specialist/Cashier,

       Department of Corrections, April of 1987 to May of 1988; and (e) Fiscal Assistant II, Department of Corrections, May of 1988 to March of 1993.

   12. In March of 1993, Petitioner completed his probationary period as an Accountant II. On March 27, 1993, Faye McClellan and David Sheffield gave Petitioner an overall performance rating of "exceeds."

   13. On June 1, 1993, Petitioner was promoted to the position of Accountant III. At this time, Petitioner's salary was increased by 10 percent to $828.20 bi-weekly.

   14. On August 20, 1993, Respondent hired Ricky Haddock, a black male, as a Fiscal Assistant II at a bi-weekly salary of

       $549.90.

       
       

   15. Ricky Haddock testified that soon after he was employed, Ms. Charron told him that "we can make your life a living hell." This statement is not credible due to

       Mr. Haddock's poor memory concerning the circumstances under which Ms. Charron allegedly made this statement.

   16. On or about March 11, 1994, Respondent promoted

       
       

       Ms. Charron to Accountant II with a bi-weekly salary of $766.94, a ten percent increase.

   17. Subsequently, Dave Sheffield received a promotion and vacated his position as District Financial Administrator.

       Linda Green, a white female, took his place. Ms. Green had over

       ten years of managerial experience when she accepted this position.

   18. As manager of the fiscal section, Linda Green became responsible for the direct supervision of Faye McClellan. She was Petitioner's and Ms. Charron's indirect supervisor.

   19. On or about March 17, 1994, Faye McClellan gave Petitioner a special performance appraisal. The appraisal form indicates that Petitioner, as an Accountant III, had attended voucher quarterly meetings, SAMAS contract training, payroll training, ADA training, and conduct standards training. The appraisal form described Petitioner as a team player. Of special note was his participation in the Youth Motivator Program in the Columbia County School System. Petitioner received a overall performance rating of "exceeds." Linda Green concurred in

       Ms. McClellan's assessment of Petitioner's job performance.

       
       

   20. On September 9, 1994, Respondent promoted Petitioner to the position of Accountant IV. The promotion increased Petitioner's salary by ten percent to $938.36 bi-weekly.

       Linda Green, as manager of the financial office, recommended Petitioner for this promotion.

   21. As an Accountant IV, Petitioner's duties primarily consisted of auditing consultant contracts. These contracts are the most complicated contracts that the financial office processes. Petitioner was also responsible for the payroll and for the supervision of other contract auditors.

   22. About two months after Petitioner became an Accountant IV, his immediate supervisor, Faye McClellan, requested and received a position reassignment in Respondent's purchasing office. Petitioner filed an employment application to fill the vacancy created by Ms. McClellan's reassignment.

   23. On November 21, 1994, Respondent promoted Petitioner to the position of Accounting Services Supervisor I. The promotion increased Petitioner's salary by 19 percent to $1,161.31 bi- weekly.

   24. Linda Green recommended Petitioner for the Accounting Services Supervisor I promotion. She became his direct supervisor.

   25. As Accounting Services Supervisor I, Petitioner was responsible for the direct supervision of several subordinate Fiscal Assistants and Accountants, including Ms. Charron. Petitioner was the only black supervisor in Respondent's second district.

   26. Historically, the financial section is one of the more racially diverse offices in District Two. From November of 1994 through June of 1995, there were approximately ten people working in the fiscal section. Three of these employees were black. At least two employees were members of other minorities.

   27. Petitioner, Ricky Haddock, and two other minority employees were the only employees in the financial office with a college education.

   28. On December 23, 1994, Respondent promoted Ms. Charron to Accountant IV. Her bi-weekly salary became $928.50 which was equivalent to the minimum of the pay grade for that position.

   29. Linda Green recommended Ms. Charron for the promotion to Accountant IV. Petitioner participated on the panel that selected Ms. Charron as the most qualified candidate to fill Petitioner's former position. In so doing, he reviewed her application and interviewed her for the job.

   30. There is no credible evidence to support Petitioner's current allegation that Linda Green allowed Ms. Charron to misrepresent her qualifications for the position of

       Accountant IV. Ms. Charron's application in February of 1994 for the position of Accountant II, and her application in November of 1994 for the position of Accountant IV, accurately describe all duties and responsibilities that she performed at Stafford's Fire Extinguisher Service in 1984-1985.

   31. In 1994, an applicant for the position of Accountant IV was required to have a bachelor's degree in accounting, or a certificate as a Certified Public Accountant, or equivalent work experience in accounting. Neither the Petitioner nor Ms. Charron possessed a bachelor's degree in accounting or a certificate as a Certified Public Accountant when Respondent promoted them to their respective Accountant IV positions. Nevertheless, the evidence indicates that they were well qualified for the position

       of Accountant IV, at the time of their respective appointments, based on a combination of their education and work experience.

   32. Petitioner had a bachelor's degree in Finance, over eleven years of accounting experience in private industry, and more than four years of experience in state governmental accounting. Ms. Charron, on the other hand, had less then one year of formal education in business administration/accounting, over one year of accounting experience in private industry, and more than eleven years of experience in state governmental accounting.

   33. State employees have to comply with numerous statutes and rules which do not apply to private enterprise. In this case, Ms. Charron's experience in working for the state more than compensated for her lack of formal education.

   34. As Accounting Services Supervisor I, Petitioner's supervisory responsibilities increased. In February of 1995, he directly supervised Rick Haddock and three other Fiscal Assistant II positions, two of which were vacant. He also had direct supervision over Ms. Charron. Ms. Charron, in turn, was responsible for the direct supervision of four other Accountant positions.

   35. On February 13, 1995, Petitioner signed a Review and Performance Planning (RAPP) form. This was a new form which Respondent began using just prior to implementing a major career service reform within the agency. The form states that from

       February 1, 1995, through January 31, 1996, Petitioner would be evaluated based on his performance of the following duties:

       1. Supervise district vouchering section.

          1. Active participation/supervision vouchering section.

          2. Coordinate workloads.

          3. Provide liaison with personnel, DOT and State Comptroller.

             
             

       2. Assist in Legislative budget request.

          1. Assist with budget preparation for various programs.

          2. Assist in formulating budget information into the different entities LBR's.

             
             

       3. Manage contract section.

          1. Manages all contracts.

          2. Verifying information and all supporting documentation for payments to vendors.

             
             

       4. Audit district disbursements.

Audit disbursement for accuracy in accordance with GAP and pertinent federal/state/department rules/ regulations/statutes.

The RAPP form lists the following as Petitioner's departmental responsibilities: 1. Coaching; 2. Delegation; 3. Management

control; 4. Leadership/Influence; 5. EEO/Affirmative Action;

6. Performance goals; 7. Planning and organization; 8. Judgment;

1. Resources; and 10. Safety practices.

   
   

   1. Linda Green wanted to increase the cross-training of all employees so that work would not become back-logged when one of them took leave. She also wanted to give Petitioner an opportunity to broaden his experience in other functions of the financial office. In order to accomplish her goals, Ms. Green

      gave Petitioner additional budget responsibility and deleted his property administration duties in February of 1995.

   2. Linda Green gave Petitioner's property administration duties to Ms. Charron. From February 1995, through May 1995,

      Ms. Charron spent a portion of her time working on the inventory. Ms. Charron continued to work on several special projects to supervise other accountants.

   3. As Accounting Services Supervisor I, Petitioner's desk was located in a glass enclosed area within a larger office. Petitioner was supposed to be a "working" supervisor. However, Petitioner spent an inordinate amount of time in his office with the door closed. During these times, Petitioner had long social visits with an employee from another office in the building. He discussed personal matters with an auditor from the central office on the phone for extended periods of time. At times Petitioner's door was locked, so staff could not use the computer which was located in his office.

   4. Petitioner's subordinates were reluctant to disturb Petitioner during these times even if they had a question they needed to ask him. They began to complain to Linda Green about Petitioner's unavailability.

   5. Linda Green observed Petitioner sleeping during meetings. At first she ignored the situation. However, employees from other offices began to complain about Petitioner's sleeping during meetings.

   6. Linda Green also received complaints from other employees that Petitioner was misusing state property. They claimed that he was receiving facsimile transmissions not related to department business.

   7. Linda Green began taking notes about these complaints on her computer. She did not share these notes with Petitioner.

   8. Linda Green discussed the prohibitions against misuse of state property in staff meetings. She also discussed her concerns about Petitioner's sleeping in meetings, talking on the telephone, and entertaining visitors with Petitioner personally.

   9. In February of 1995, Respondent initiated a new job classification and pay plan. The 1994 Legislature mandated this new system, which is distinct from the career service rules promulgated by the Department of Management Services. The new system is unique to Respondent as an agency.

   10. Under the new system, Respondent's employees retain career service status and benefits. However, Respondent changed position descriptions, job classifications, employment qualifications, and pay scale ranges to create more flexibility in hiring, promoting, and reassigning duties of employees within the department.

   11. The new system concentrates on the knowledge, skills, and abilities required for each position rather than a minimum qualification for each class specification. Formal education remains important, but it is not the paramount consideration in

       deciding whether to hire or promote employees. The focus of the new system is to ensure that employees can perform the required functions and duties of the specific positions which they occupy or for which they apply.

   12. Under the new system, Respondent can reward employees for productivity by increasing their salary without having to promote them to a new position or reclassify their existing positions. Respondent can increase or decrease salaries within a new classification, depending upon the actual duties assigned and performed by the employees.

   13. The new plan reduced the number of career service job classes from over 52 occupational groups with 1700 job classifications to 16 occupational groups divided into six levels.

   14. Respondent uses the fourth and fifth levels within an occupational group to recognize the distinctive, but equivalent, value of technical and managerial expertise. For example, each occupational group embraces a Level IV and Level V which corresponds to technical and managerial expertise respectively. A reassignment from a Level V managerial position to a Level IV technical position, or vice versa, is not a demotion or promotion, respectively.

   15. The new Level IV and Level V positions allow Respondent to reassign employees to different duties to meet the demands of the changing work load and work force without adversely affecting

       their work status, employment records, or incomes. Thus, Respondent can shift employees from obsolete duties to new and viable tasks where they are more productive.

   16. When Respondent initiated the new system, and for one year thereafter, Respondent's central office had to approve every reassignment from an old career service position "title" to the corresponding new title. In performing this duty, Respondent's central office verified the salary for each position to ensure that the salary corresponded to the duties assigned to that position.

   17. The initial reassignments in the new system were effective February 24, 1995. At that time, Linda Green, Ms. Charron, and Petitioner were reassigned to the new

       Accounting, Audit, and Tax occupational group with no change in their respective salaries. Linda Green was assigned to Level VI, as District Financial Services Manager. Petitioner was assigned Level V, Accounting Services Supervisor I, which required that Petitioner spend over 51 percent of his time supervising other employees. Ms. Charron was assigned to Level III as an Accountant IV. Petitioner continued to be Ms. Charron's direct supervisor.

   18. A personality conflict developed between Petitioner and Ms. Charron after she became an Accountant IV in December of 1994.

   19. Ms. Charron did not want the employees that she supervised to seek or receive assistance from Petitioner, even though he was her supervisor. If Ms. Charron disagreed with Petitioner, she would go over Petitioner's head to Linda Green to resolve the conflict.

   20. Petitioner resented not having total control over all of the employees under his direct and indirect supervision. His attitude became confrontational with other employees when they asked a question or made a comment that he perceived as undermining his authority. At times he was overly assertive in an effort to prove that he was right on one point or another.

   21. Linda Green did nothing to open lines of communication between Petitioner, as supervisor, and Ms. Charron, as his subordinate. Petitioner did not seek Ms. Green's assistance in resolving the conflict with Ms. Charron. As the power struggle between Petitioner and Ms. Charron ensued, dissension and poor morale became a problem in the fiscal section.

   22. On one occasion, Debbie Williams and Laura Kennon were working with the central office to correct an invoice error on one of Petitioner's consultant contracts. Petitioner questioned the method they were using to correct the problem. He wanted them to correct the error without involving the central office or the State Comptroller's office. Ms. Williams wanted to leave a proper audit trail. Before the situation was resolved, all three employees became angry and confrontational.

   23. Around the end of February 1995, a member of the financial services staff requested a meeting to discuss the problems the office was having as a result of the dissension between Petitioner and Ms. Charron. Jean Jones, District Two's Director of Administration attended the meeting. Linda Green and Jean Jones advised the staff that they could go to either Petitioner or Ms. Charron for answers to any questions about their work.

   24. Linda Green did not tell her staff in this meeting, or any other meeting, that education did not mean anything in Respondent's financial section.

   25. After the meeting was over, Jean Jones told Linda Green that some changes had to be made to better define the lines of communication within the office. Ms. Jones instructed Ms. Green to do some research and develop a solution to the problem.

   26. A large part of Ms. Charron's duties included working on special projects. These projects necessitated frequent consultations between Linda Green and Ms. Charron. There is no persuasive evidence that Linda Green showed favoritism to

       Ms. Charron by conspiring with her against Petitioner in private meetings and conversations. To the contrary, the dissension that existed in the office was the result of a personality conflict between Petitioner and Ms. Charron. Ms. Green's inability to establish a clear chain of command aggravated the situation.

   27. Prior to November of 1994, Respondent provided Petitioner with an abundance of training in technical and management subject areas. Some of the technical seminars included consultant procedures and negotiation, contract fund approval and encumbrance, and contractual services training. Other training programs included office staff skills enhancement, employee selection, conduct standards and discipline, district budget development, supervisory decision making, employee performance appraisal, fundamental skills of communication, fundamental skills of management, and Certified Public Management Level I.

   28. After November of 1994, Petitioner continued to receive training to enhance his career. Some of the programs he attended included review and performance planning, how to supervise people, managing change, presentation skills, budget and budget orientation, federal aid training, records retention, and management problems of the technical person in a leadership role.

   29. Linda Green encouraged Petitioner to participate in the training programs. She gave him the opportunity to develop the skills necessary to enhance his career.

   30. In the spring of 1995, Linda Green worked on training plans for all personnel in the fiscal section including Petitioner. On April 7, 1995, Ms. Green discussed Petitioner's training plan with him. On April 25, 1995, a copy of Petitioner's training plan was discovered on his desk with the

       word "bullshit" written across the bottom. Petitioner admits that he wrote this expletive on his training plan in the presence of Ms. Charron.

   31. In April of 1995, the State Comptroller's office rejected and returned a great number of invoices to the financial office. Linda Green responded by assigning Petitioner the responsibility of handling the returns and correcting the errors. In order to stay apprised of the situation, Ms. Green required that all mail relating to returns be directed to her before being delivered to Petitioner. She did not review Petitioner's mail unrelated to the returns.

   32. In April of 1995, Linda Green became aware that certain work assigned to Petitioner and/or Petitioner's subordinates was not being performed in a timely manner. Ms. Green had to enlist the help of other personnel to complete the work.

   33. In April of 1995, Linda Green initiated the procedure to issue reprimands to Petitioner concerning his continued misuse of the office telephones and facsimile machines, his sleeping on duty, and his social visits that wasted time. However, this procedure was delayed because Petitioner was hospitalized for surgery.

   34. Petitioner was out of work on sick leave from April 27, 1995, to May 30, 1995. During his illness, Linda Green extended Petitioner's probationary period for his Accounting Services Supervisor I position.

   35. In the 1992-93 fiscal year, the financial services office had approximately 12 primary responsibilities. The financial office gained 10 additional duties in the 1993-94 fiscal year and 18 new duties in the 1994-95 fiscal year. During this time, the number of positions in the financial office doubled.

   36. In May of 1995, Linda Green began to plan the reorganization of the financial section. She discussed the reorganization with her supervisor, Jean Jones. They made a decision to divide the responsibilities in the financial services office between Petitioner and Ms. Charron, the two established supervisors. They based the decision in part on a need to accommodate the increased work load. They also decided to split the supervision duties in an effort to improve the lines of communication within the office and to eliminate dissension. Officials in Respondent's central and district offices approved the reorganization.

   37. Under the reorganization plan, Ms. Green decided to give Petitioner responsibility for the following: supervising the concentration account; processing purchase orders, local purchase orders, local charge accounts, and utility invoice transmittals; processing travel and individual reimbursements; handling deposits; supervising warrant distribution; and processing mail. Ms. Green deleted Petitioner's duties relative to payroll and contracts.

   38. Ms. Charron's duties under the reorganization included supervision of the following: contracts, reconciliations, compliance reports, interest payments, and journal transfers. She assumed supervision of the payroll at the express request of Jean Jones. Additionally, Ms. Charron was assigned numerous special projects.

   39. When Petitioner returned to work from sick leave on June 1, 1995, Linda Green discussed the reorganization with Petitioner and Ms. Charron. She advised them that Ms. Charron would supervise four Level Two positions, one of which was vacant. Petitioner would supervise five Level One positions, all of which were occupied. Petitioner and Ms. Charron would report directly to Linda Green.

   40. Linda Green decided to have Petitioner supervise the Level One positions because they needed more supervision than the Level Two positions. Petitioner was better qualified than

       Ms. Charron to supervise the five entry level positions occupied by minority and non-minority employees.

   41. On June 15, 1995, Linda Green promoted Ms. Charron to Accounting, Audit, Tax Level V. Her salary was increased by 20 percent to $1,114.20 bi-monthly. The promotion was effective before the expiration of Ms. Charron's probationary period as an Accountant IV.

   42. The decisions to reorganize the section and promote Ms. Charron were made while Petitioner was absent on sick leave.

       Linda Green did not deliberately choose to promote Ms. Charron without consulting Petitioner as her supervisor. Moreover, Ms. Green, as manager, had no duty to consult with Petitioner before reorganizing the office.

   43. On June 16, 1995, Linda Green issued two official written reprimands against Petitioner. The first written reprimand involved a violation of Respondent's Conduct Standard 14-17.012(4)(a)6., Florida Administrative Code, for sleeping on duty. The reprimand documented the following occasions that Petitioner violated this conduct standard: November 30, 1994; December 1, 1994; January 5, 1995; March 13, 1995; March 20, 1995; March 21, 1995; March 30, 1995; June 5, 1995; and June 7, 1995.

   44. Prior to June of 1995, numerous employees were observed sleeping in meetings. The record contains no evidence that any of them were given written reprimands for sleeping on duty. Except for one of these employees, there is no evidence that their respective supervisors were aware that they were sleeping on duty.

   45. One employee, Jim Spencer, was observed sleeping on duty by his direct supervisor, Jean Jones. He was not on permanent career status at the time. Jean Jones decided to extend Mr. Spencer's probationary status rather than issue him a written reprimand. Ms. Jones made a conscious decision to give

       Mr. Spencer an opportunity to correct his behavior before dismissing him from employment.

   46. The second official written reprimand charged Petitioner with violating Respondent's Conduct Standard

       14-17.012(4)(a)25., Florida Administrative Code, for unauthorized use or misuse of state property, services, equipment or personnel, and Respondent's Conduct Standard 14-17.012(4)(a)7., Florida Administrative Code, for loafing. This reprimand was the result of Petitioner's continued abuse of telephone privileges from January through June of 1995, misuse of the facsimile machines from February through May of 1995, and extended social visits with an employee from another office from January through March of 1995.

   47. Petitioner's alleged misuse of Respondent's facsimile machine was due to his involvement with the Safe and Drug-free Schools Advisory Council sponsored by the Columbia County School Board. Petitioner was cautioned in staff meetings on

       February 13, 1995, and February 21, 1995, against using state property for personal reasons. After those meetings, he received announcements of advisory council meetings on February 27, 1995, and April 26, 1995. He received a third fax transmission from the school board on May 16, 1995, while he was on sick leave.

   48. The school board solicited Petitioner's participation in the advisory council during one of Respondent's staff meetings. Respondent's employees did not have to request leave

       to attend the meeting. Nevertheless, Respondent did not give its employees permission to use its facsimile machines to receive notices about advisory council meetings or other volunteer work.

   49. Petitioner contacted the school board staff to tell them not to send him notices using Respondent's facsimile machines. The record is not clear as to when Petitioner made this request. Petitioner did not receive facsimile transmissions from the school board after he received the reprimand in June of 1995.

   50. The record contains evidence of four written reprimands for employee misuse of state property from December 1994, through May 1995. From February 1996, through June 1996, six employees were given written reprimands for misuse of state property.

   51. The reprimands of other employees included misuse of telephone privileges, computers, and agency stamps and stationary. These reprimands, together with competent evidence that Petitioner abused his long-distance telephone privileges as set forth below, eliminate any concern that Petitioner received disparate treatment regarding his reprimand for misuse or unauthorized use of state property.

   52. There is no evidence that Respondent has ever cited anyone but Petitioner for loafing. Nevertheless, the record supports this charge against Petitioner.

   53. Juanita Aiken works in Respondent's central office as an Disbursement Services Analyst. She testified that she often discussed personal matters with Respondent's employees in long- distance telephone conversations before she addressed the business purpose of her call.

   54. Linda Green personally informed Petitioner in January of 1995 that he needed to confine his long-distance telephone conversations with Ms. Aiken to department business. Petitioner did not heed her verbal warning. Ms. Aiken's personal telephone conversations with Petitioner did not cease until Linda Green and Jean Jones contacted her supervisor in Tallahassee.

   55. In the spring of 1995, Linda Green solicited Debra Williams' help in monitoring Petitioner's personal telephone calls. Ms. Williams declined to become involved and requested that her desk be relocated to another area.

   56. Linda Green assigned Ms. Charron a desk in Petitioner's private office in April of 1995. Ms. Charron complained to

       Ms. Green that Petitioner was talking on the phone for 30 to 45 minutes everyday and sometimes twice a day. The personal nature of the calls made Ms. Charron feel uncomfortable.

   57. Olu Olyewole worked for Respondent as a Distributor Computer Systems Analyst. He was responsible for connecting personal computer terminals to the networking system. He visited Petitioner regularly for extended periods of time until Ms. Green complained to his supervisor. When Mr. Olyewole visited Petitioner, the door to Petitioner's private office would often be closed.

   58. Early in 1995, Wanda Jean Hills desk was located in the glass-enclosed office with Petitioner's desk. On one occasion she could not get to her desk because she believed Petitioner and Mr. Olyewole were having a private conversation.

   59. The long social visits with Mr. Olyewole wasted time in an office that was overburdened with work. The visits interfered the performance of work by Petitioner and his subordinates. Petitioner was unavailable to his subordinates during these visits because they were reluctant to disturb his conversations, even when they needed his assistance.

   60. Linda Green did not reprimand any of her subordinates except Petitioner for misuse of state property, sleeping on duty, or loafing. However, there is no evidence that other employees

       under her authority violated the same conduct standards that Petitioner violated.

   61. There is evidence that Linda Green sold Amway products to employees on Respondent's property over a two-month time span. The record does not reflect the exact period of time in which

       Ms. Green engaged in this activity.

       
       

   62. The greater weight of the evidence indicates that Linda Green passed out Amway brochures and delivered merchandise before work in the mornings. At times, her co-workers would

       place an order with Ms. Green during work hours because they were familiar with Amway products and knew that she was an Amway representative. Occasionally, Respondent's employees would hand Ms. Green a check or leave one in her desk during work hours.

   63. Linda Green did not aggressively pursue her private enterprise during work hours. There is no evidence that

       Ms. Green's private business activities interfered with her duties or usurped a significant portion of her time as manager of the financial section.

   64. Respondent did not give Linda Green a written reprimand for conducting private business on Respondent's property. The record does not reflect whether Ms. Green was verbally reprimanded. It does not appear that her supervisor, Jean Jones, was aware that Ms. Green was involved in selling Amway products on department property.

   65. The record does not contain evidence of any written reprimand based solely on unauthorized solicitation on state property. It does contain evidence that Respondent issued a written reprimand to an employee for conducting personal business while using a state vehicle. The employee's actions, like

       Ms. Green's, were incidental to the performance of his duties. The employee's supervisor did not require the employee to reimburse the agency for any cost.

   66. On June 16, 1995, Linda Green gave Petitioner a special performance appraisal to evaluate his performance as a supervisor since November 21, 1994. To conduct this evaluation, Ms. Green used the performance appraisal form for supervisors and managers that was in effect when Petitioner was promoted to Accounting Services Supervisor I in November of 1994.

   67. Linda Green admits that she did not conduct the required initial review of the relevant performance standards with Petitioner within two weeks of his promotion. Nevertheless, Petitioner's claims that he was not familiar with the performance standards used by Ms. Green to evaluate his performance is not persuasive.

   68. Petitioner attended at least two seminars in performance appraisal and performance planning. Petitioner was familiar with the performance standards for a supervisor, which became effective after Respondent initiated its career service reform in February of 1995. He signed the RAPP form on February

       13, 1995. The standards contained on the new appraisal form are substantially similar to the performance standards listed on the older appraisal form.

   69. Linda Green gave Petitioner an overall performance rating of "below" standards. The record supports her determination that Petitioner's work performance began to fall short of expectations after he assumed the position as an accounting supervisor.

   70. Linda Green determined that Petitioner's performance in two categories deserved the highest rating of "achieves." These two categories were EEO/AFFIRMATIVE ACTION and SAFETY PRACTICES.

   71. Linda Green determined that Petitioner's performance was substantially below expectations in at least one area of each of the remaining six categories for the following reasons:

       1. PLANNING, CONTROLLING AND ORGANIZING WORK Petitioner failed to operate his work areas efficiently. He did not notify his supervisor of job related problems. Petitioner did not take necessary and appropriate action on performance and shortcomings of subordinate employees.

          
          

       2. SUPERVISION/LEADERSHIP OF PEOPLE Petitioner failed to delegate effectively. Petitioner demonstrated dissension toward other staff members.

          
          

       3. PERFORMANCE APPRAISALS

          Petitioner did not take necessary and appropriate action on performance shortcomings of subordinate employees.

       4. PROBLEM ANALYSIS/DECISION MAKING Petitioner failed to inform and/or consult with necessary persons during the decision- making process.

          
          

       5. SELF DIRECTION/PERSONAL SKILLS Petitioner failed to use his work time effectively. He abused his telephone privileges. He wasted time visiting with an other employee.

          
          

       6. JOB PERFORMANCE

          Petitioner failed to perform specific job assignments as outlined on his position description or as assigned by appropriate management.

          
          

   72. A job applicant claimed that he earned 2400 credit hours in a U.S. Army finance school within a two-month period. Petitioner offered the applicant a job without verifying this information. Linda Green subsequently determined that the applicant had misrepresented his qualifications and withdrew the job offer. Based on this incident alone, Petitioner did not meet the standard for job performance in general.

   73. In December of 1995, Rick Haddock received a promotion to a Level II accountant. His salary increased by 20 percent to

       $715.27 bi-monthly.

       
       

   74. In March of 1996, Petitioner had a confrontation with Mary Caldwell, a white female accountant. Petitioner's voice was loud; he sounded very angry and threatening. The disturbance alarmed several employees who were in the vicinity. Ms. Caldwell and Petitioner went into a private office where the argument continued. Petitioner's behavior toward Ms. Caldwell was totally inappropriate.

   75. On March 22, 1996, Linda Green gave Petitioner a written reprimand for violation of Respondent's Conduct Standard 14-17.012(4)(a)16., Florida Administrative Code, involving rudeness, display of uncooperative or antagonistic attitude, actions or behavior. That same day, Ms. Green gave Petitioner a mandatory Employee Assistance Program Referral.

   76. In June of 1996, Linda Green deleted Petitioner's duties involving the budget and supervision of the vouchering section. Linda Green gave Patsy Green, a white female, Petitioner's budget responsibilities. Linda Green took this initiative because of the increased work load resulting from continued decentralization.

   77. The central office initiated a process in 1996 to conduct a periodic formal Quality Assurance Review (QAR) in each district office. The purpose of the QAR was to ensure that all vouchers were correct before they were sent to the billing office of the State Controller. Ms. Green wanted Petitioner to focus his energy on making sure that District Two's vouchers were in compliance with all state regulations.

   78. In June, 1996, Linda Green gave Petitioner additional duties including financial audits and investigations, quality assurance reports, reconciliations, comptroller returns, and liaison with the State Comptroller's office. His new duties were in-depth auditing and accounting responsibilities involving job cost reporting and making sure that the accounting system stayed

       in balance. Petitioner's salary was not decreased when his job description changed.

   79. At the same time, Linda Green gave Ms. Charron additional duties including contract funds management, joint participation agreements, settlement agreements, management reports, training, and numerous special projects. Ms. Green deleted Ms. Charron's supervisory responsibilities over the contract section.

   80. Linda Green received information in June 1996, that the central office intended to audit the supervisory positions in District Two. The central office wanted to make sure that all Level V positions in the Accounting, Audit, and Tax occupational group were held by employees spending at least 51 percent of their time in supervision.

   81. Petitioner and Ms. Charron were not spending 51 percent of their time in supervising the work of other employees. Accordingly, both of them were reassigned on June 14, 1996, to Level IV of the Accounting, Audit, and Tax occupational group. The working title for each of them became Accounting Services Administrator. This change was not a demotion and did not effect their respective salaries. Instead, the reassignments accurately reflected the actual duties of their positions.

   82. After Petitioner filed his Charge of Discrimination, Michael Klump, from Respondent's Minority Program Office in Tallahassee, Florida, was assigned to furnish all information

       requested by FCHR and to prepare the agency's response to the complaint. Mr. Klump's duties did not involve investigating the alleged charges on behalf of FCHR.

   83. Respondent's Minority Program Office prepared a letter dated September 11, 1995, addressed to Petitioner. The purpose of the letter was to advise Petitioner that the agency had received the complaint. It states that Petitioner should contact Mr. Klump if Petitioner had any additional information or questions regarding this matter. There is no competent evidence to indicate whether Petitioner received the letter from the Minority Program Office.

   84. Mr. Klump visited Respondent's District Two Office in Lake City to gather the information requested by FCHR. He did not interview Petitioner while he was there.

   85. Respondent's Minority Program Office does not routinely interview complainants who file a charge of employment discrimination with FCHR unless the complainant responds to a letter similar to the one addressed to Petitioner.

   86. There is no credible evidence that Respondent prepared its response and/or position statement to FCHR with the intention of misrepresenting material facts.

   87. Linda Green gave Petitioner a copy of her computer notes relative to dissension in the office when he first requested them. However, she edited the notes to delete the names of employees that had complained about Petitioner. At the

       hearing, Ms. Green produced an unedited copy of the notes which had been updated beyond the time relevant here.

   88. There is no persuasive evidence that Respondent intentionally discriminated against Petitioner on the basis of his race or gender or retaliated against him for filing his Charge of Discrimination.

       CONCLUSIONS OF LAW

       
       

   89. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding pursuant to Sections 120.569 and 120.57, Florida Statutes, and Section 760.11, Florida Statutes.

   90. Section 760.10(1), Florida Statues, provides that it is unlawful for an employer to "discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race . . . [or] sex "

   91. Florida has adopted federal standards to assist in the resolution of employment discrimination cases arising under Chapter 760, Florida Statutes. School Board of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981).

   92. Petitioner alleges that Respondent treated him less favorably than other employees because of his race and gender. He also claims that Respondent retaliated against him for filing his charge of discrimination. Petitioner bears the ultimate burden of proving his allegations by a preponderance of the

       evidence. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); McDonald Douglas v. Green, 411 U.S. 792, 804, (1973); Perkins v. School Bd. of Pinellas County, 902 F.Supp.

       1503, 1506 (M.D. Fla. 1995).

       
       

   93. In order to prove a violation of Section 760.10, Florida Statutes, based on disparate treatment, Petitioner initially must prove a prima facie case of the following:

       (a) he is a member of a protected class; (b) he suffered an adverse employment action; (c) he and a similarly situated non- protected person received dissimilar treatment; (d) sufficient evidence, either circumstantial or direct, exists to infer a nexus or causal connection between race and the disparate treatment. Perkins, 902 F.Supp. at 1506.

   94. Petitioner has met the first prong of the McDonnell Douglas test. He is a member of a protected group, the African- American race.

   95. Petitioner has not met the second prong of the McDonnell Douglas test in some respects. Petitioner did not suffer an adverse employment action due to the following:

       (a) the reorganization of the office in June of 1995; (b) the promotion of Ms. Charron as a co-supervisor in June of 1995;

       (c) the distribution of subordinates between Petitioner and

       
       

       Ms. Charron; (d) the deletion and addition of Petitioner's work assignments over time; (e) Petitioner's reassignment to Accounting Services Supervisor Level IV in June of 1996; and

       (f) the procedure used by the Minority Program Office in preparing Respondent's position statement and furnishing FCHR with requested information.

   96. The reorganization of the financial services office and the promotion of Ms. Charron to a co-supervisory position with Petitioner in June of 1995 was not an adverse employment action. The reorganization was necessary to accommodate the increased work load of the office due to decentralization. It also was intended to eliminate dissension within the office due to the personality conflict between Petitioner and Ms. Charron. The reorganization did not result in a demotion or a decrease in salary for Petitioner.

   97. Immediately after the 1995 reorganization, Petitioner was responsible for supervising five employees including two blacks (Ricky Haddock and Lourella Thomas), one Indian

       (D. G. Patel), and two whites (Mary Caldwell and Lisa Butler).

       Ms. Charron was given responsibility to supervise four positions including three whites (Debbie Williams, Wanda Jean Hill, and Geraldine Sandford) and one vacant position.

   98. The number of positions and the race of the employees that Petitioner and Ms. Charron supervised changed from time-to- time depending on the work load and attrition within the office. Linda Green assigned subordinates between Petitioner and

       Ms. Charron based on a business necessity to best utilize human resources and produce quality work. The distribution of subordinates was not an adverse employment action.

   99. Petitioner's reassignment to Accounting Services Administrator Level IV in June of 1996 was not an adverse employment action. He was not demoted and did not experience a decrease in salary. Under the new career service system, neither Petitioner nor Ms. Charron were entitled to retain their Level V positions because they were not spending 51 percent of their time supervising the work of other employees. After the reassignment, Petitioner and Ms. Charron each directly supervised one white employee.

   100. The deletion of some of Petitioner's duties from time- to-time was not an adverse employment action. Each change in his position description resulted in the addition of other duties which represented in-depth auditing and accounting responsibilities. Shifts in work assignments and cross-training

        of employees was necessary due to the process of decentralization which continuously increased the work load within the office.

   101. Petitioner did experience adverse employment actions when he received two written reprimands and a negative performance appraisal.

   102. Petitioner does not dispute that he violated Respondent's disciplinary standard against sleeping on duty. He does not deny that he used Respondent's long-distance telephone to discuss personal business or that he visited with a friend during work hours. Instead, he claims that his reprimands for sleeping on duty, misuse of state property, and loafing represent disparate treatment.

   103. As to the written reprimands, Petitioner has not met the third prong of the McDonnell Douglas test. There is no evidence that any employee under Linda Green's supervision except Petitioner ever slept on duty, abused long-distance telephone privileges, or carried on extended social visits during work hours. The failure of other supervisors to discipline personnel who may have violated the same disciplinary standards is not comparable here. Jones v. Gerwens, 874 F.2d 1534 (11th Cir. 1989).

   104. Petitioner argues that Respondent's failure to reprimand Linda Green for conducting private business on state property illustrates unequal treatment. This argument is without merit. There is no persuasive evidence that Ms. Green spent a

        significant amount of time during work hours on her Amway business. There is no evidence that her supervisor knew she was involved with Amway.

   105. Linda Green certainly set a poor example for her employees by engaging in a private business venture on state property. This is especially true because she felt compelled to cite Petitioner for the passive receipt of facsimile transmissions from the school board. Even so, Ms. Green's business activities are not comparable to Petitioner's habit of sleeping during meetings, talking on the phone for 30 to 45 minutes a day, and visiting with a friend for extended periods of time while subordinates wait for an opportunity to ask questions.

   106. Petitioner has not met the third prong of the McDonnell Douglas test by showing that Linda Green rated his performance lower than performance of another similarly situated non-protected employee.

   107. Petitioner asserts that his negative performance appraisal was unjustified. However, the greater weight of the evidence indicates that Petitioner's performance from November of 1994 through June of 1995 did not meet the performance standards of an Accounting Services Supervisor I.

   108. Linda Green promoted Ms. Charron to Accounting Services Supervisor Level Five the day before she gave Petitioner the negative evaluation. Prior to the promotion, Ms. Charron had some subordinate supervisory responsibilities as an

        Accountant IV. There is no persuasive evidence that

        
        

        Ms. Charron's work as an Accountant IV fell below the applicable performance standards. Ms. Charron was not similarly situated to Petitioner prior to her promotion in June of 1995.

   109. The personality conflict between Petitioner and Ms. Charron was responsible for the dissension within the office. Ms. Green did not take timely affirmative action to resolve the power struggle, open lines of communication, and establish a clear chain of command between Petitioner as supervisor and Ms. Charron as his subordinate.

   110. Nevertheless, Petitioner's job evaluation was not based on his failure to get along with Ms. Charron. It was based on his failure to supervise the work of his subordinates, his failure to perform assigned tasks, his failure to use his time effectively, his failure to delegate responsibility, and his failure to discuss work-related problems with his supervisor.

   111. Petitioner has not presented a prima facie case of discrimination because Respondent did not treat a similarly situated non-protected person more favorably than Petitioner. There is no disparate treatment with which to infer a nexus or causal connection between Petitioner's race and the adverse employment actions that he experienced.

   112. If Petitioner had met the threshold of establishing his prima facie case, the burden would have shifted to Respondent

        to come forward with a legitimate non-discriminatory business reason for the adverse actions. Perkins, 902 F.Supp. at 1507.

   113. In this case, Petitioner was disciplined pursuant to Respondent's disciplinary standards. Petitioner was familiar with these policies. Ms. Green warned Petitioner verbally to

        stop sleeping in meetings, talking on the phone, and visiting with his friend. Respondent had a legitimate reason to issue written reprimands to Petitioner.

   114. Petitioner's testimony that he was unfamiliar with the performance standards used to evaluate his performance in June of 1995 is not credible. He had attended seminars on performance appraisals. He was familiar with substantially similar performance standards for supervisors that became effective in February of 1995. Respondent had a reason to give Petitioner a negative performance evaluation which was unrelated to his race or gender.

   115. Petitioner has not met his burden of proving by a preponderance of the evidence that Respondent discriminated against him on the basis of his race or gender. Linda Green recommended that Petitioner receive two promotions, both of which increased his salary. She encouraged him to attend training sessions which would give him the opportunity to enhance his career. Ms. Green depended on Petitioner to perform complicated auditing and accounting work. When the central office initiated formal Quality Assurance Reviews, she assigned Petitioner the task of ensuring that the office was in compliance with all statues and regulations.

   116. Retaliation is a distinct offense under Title VII. Meeks v. Computer Associates, 15 F.3d 1013, 1021 (11th Cir. 1994).

        To recover for retaliation, the plaintiff "need not prove the underlying claim of discrimination which led to her protest," so long as she had a reasonable good faith belief that the discrimination existed. (citation omitted.)

        
        

        Meeks, 15 F.3d at 1021. To establish a prima facie case of retaliation, Petitioner was required to show the following:

        (a) that he engaged in statutorily protected expression; (b) that he suffered an adverse employment action; and (c) that there is some causal relation between the two events. Meeks, 15 F.3d at 1021.

   117. The evidence here is insufficient to support a finding of retaliation. For the reasons set forth above, Petitioner did not prove the following: (a) that Respondent disciplined Petitioner more harshly than similarly situated non-protected employees;4 (b) that Petitioner supervised only black subordinates; (c) that Petitioner was demoted due to his reassignment from a Level V Accounting Services Supervisor to a Level IV Accounting Services Administrator; (d) that Respondent misrepresented material facts in its position statement furnished to the FCHR; (e) that Respondent did not follow its policy and procedure in gathering information requested by FCHR; and (f) that Respondent denied Petitioner perquisites provided to non- minority employees.

RECOMMENDATION

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 dismissing Petitioner's claims of racial and gender discrimination and retaliation.

Recommended this 15th day of October, 1997, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1997.

ENDNOTES

1/ Petitioner withdrew his charge of employment discrimination based on a disability.

2/ Petitioner's Motion in Limine and Memorandum in support of Motion in Limine was filed at the hearing on June 12, 1997.

3/ This Recommended Order does not consider allegations of retaliatory actions which may have occurred after July 25, 1996. For example, the undersigned has not considered Respondent's placement of a white male in the position of Assistant Account Supervisor at Level V of the Accounting, Audit, and Tax occupational group effective June 20, 1997. It is noted that Petitioner did not file an application for this advertised position.

Petitioner's budget responsibilities were given to Patsy Green in June of 1996. She was promoted and given a raise on September 6, 1996. Her promotion and raise has not been considered here.

Additionally, this Recommended Order does not consider allegations that, one week before the hearing, Respondent assigned Petitioner to a "punishment desk" located near the entrance to the office and required him to perform entry level duties, such as delivering mail, when his subordinate was absent.

Lastly, this Recommended Order does not consider Linda Green's reorganization of the financial office in October of 1996. As a result of this reorganization, Petitioner and Karin Charron were each assigned the responsibility to supervise one subordinate.

Ms. Green assigned Petitioner the responsibility to supervise one entry level Fiscal Assistant, a white female. Ms. Green assigned Ms. Charron the responsibility to supervise one Level II

Accountant, a white female, who did not require as much supervision as a Fiscal Assistant. Everyone else in the financial section reported directly to Ms. Green.

4/ Petitioner certainly deserved the reprimand he received in March of 1996 due to his confrontation with Mary Caldwell.

COPIES FURNISHED:

Diane B. McPherson, Esquire 706 Northeast 5th Avenue Gainesville, Florida 32601

Charles G. Gardner, Esquire Department of Transportation Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Dana Baird, Esquire Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 96-004162

Orders for Case No: 96-004162