STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ST. JOHNS RIVER WATER )
MANAGEMENT DISTRICT, )
)
Petitioner, )
)
vs. ) Case No. 00-4196
)
JOHNNIE D. AINSLEY, )
)
Respondent. )
)
RECOMMENDED ORDER
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Viera, Florida, on February 22 and March 6, 2001.
APPEARANCES
For Petitioner: John W. Williams
Deputy General Counsel
St. Johns River Water Management District Post Office Box 1429
Palatka, Florida 32178-1429
For Respondent: Johnnie D. Ainsley, pro se
1210 Walnut Grove Way Rockledge, Florida 32955-4629
STATEMENT OF THE ISSUE
The issue is whether Petitioner has proved that Respondent failed to meet performance standards so as to justify his termination from employment.
PRELIMINARY STATEMENT
By letter dated August 31, 2000, from Petitioner's Executive Director to Respondent, Petitioner advised Respondent that it was terminating his employment, effective August 31, 2000, for the reasons stated in a letter dated August 14, 2000.
The August 14 letter states that Petitioner was considering terminating Respondent for "continuing sub-standard work performance." The August 14 letter notes that Respondent received a performance evaluation on March 20, 2000, indicating that his work was unsatisfactory and that, pursuant to District Policy 79-18, he received a corrective action plan giving him 60 days to improve. According to the August 14 letter, Respondent received a follow-up performance evaluation on May 31, 2000, indicating that his work remained unsatisfactory; however, Petitioner gave him an additional 60 days to improve. The August 14 letter states that Respondent received another performance evaluation on July 31, 2000, which indicated that Respondent had not made the necessary improvements to raise his work to satisfactory.
The August 14 letter notifies Respondent of a pre- determination conference on August 23, 2000, at which he could present information favorable to his position. The August 14 letter concludes by placing Respondent on administrative leave with pay pending resolution of the matter.
At the hearing, Petitioner called nine witnesses and offered into evidence 23 exhibits: Petitioner Exhibits 1-23. Respondent called three witnesses and offered into evidence 25 exhibits: Respondent Exhibits 2-4, 8-11, 13, 17-26, 28-29, 31, and 40-43. The Administrative Law Judge admitted a copy of the January 2000 evaluation of Respondent as Administrative Law Judge Exhibit 1. All exhibits were admitted except Respondent Exhibits 18 and 21, which were proffered. Following the hearing, the Administrative Law Judge admitted a copy of the August 14, 2000, letter as Administrative Law Judge Exhibit 2.
The Recommended Order changes the designation of the parties to reflect the allocation of the burden of proof. References in the transcript to "Petitioner" are to Respondent, and references in the transcript to "Respondent" are to Petitioner.
The court reporter filed the transcript on April 11, 2001.
FINDINGS OF FACT
Respondent earned a bachelor's degree in social science and a master's degree in communications. At the time of his retirement from the United States Air Force after 21 years' service, Respondent was working as a public affairs director under a wing commander.
Following his military retirement, Respondent obtained a public-communications job with Petitioner. During his six and
one-half years' employment with Petitioner, Respondent had reached the level of a Public Communications Specialist III when Petitioner fired him effective August 31, 2000.
The events that led to Respondent's termination followed a large-scale reorganization that Petitioner implemented on December 31, 1999. Petitioner does not dispute that, prior to the reorganization, Respondent received good evaluations indicating that his work was average or better than average.
Prior to the reorganization, Respondent's job responsibilities emphasized direct contact with the public, such as attending environmental events and presenting or arranging public presentations to various community groups. Working in Petitioner's Department of Water Resources, Respondent devoted substantially all of his efforts to public communications for the Indian River Lagoon National Estuary Program, which is administered by Petitioner. Among other things, Respondent headed the Florida Yards and Neighborhoods Program, which is part of the Indian River Lagoon National Estuary Program; provided staff support for related citizens' advisory committees; coordinated public outreach over five counties and part of a sixth; and published Petitioner's Indian River Lagoon Update (Newsletter).
Prior to the reorganization, Respondent's direct supervisor was Martin Smithson, who was the program director of the Indian River Lagoon National Estuary Program. Respondent, Mr. Smithson, and other staff in the Indian River Lagoon National Estuary Program worked in Petitioner's Palm Bay office, which is a considerable distance from Petitioner's headquarters in Palatka.
Originally funded largely by the United States Environmental Protection Agency, the Indian River Lagoon National Estuary Program lost federal financial support over several years, as annual federal contributions decreased from
$1 million to $300,000. At one time, federal funds paid for the salaries of staff, including Respondent, but, in recent years, Petitioner had assumed much of the financial burden of the program.
One of the purposes of the reorganization was to centralize public communications within the District by placing all public-communications employees within Petitioner's Office of Communications. Accordingly, Petitioner reassigned Respondent from the Department of Water Resources to the Office of Communications. Although most of the Office of Communications staff work in the Palatka office, Respondent remained in the Palm Bay office. However, after the
reorganization, Respondent reported to Beth Hickenlooper, an Office of Communications supervisor in the Palatka office.
On November 30, 1999, Ms. Hickenlooper sent Respondent a memorandum concerning the Newsletter. In this memorandum, Ms. Hickenlooper advised Respondent: "As you join the Office of Communications, you will likely have new experiences, and procedures you have used in the past will change. Change will also effect [sic] the Indian River Lagoon Update.”
The November 30 memorandum states that Ms. Hickenlooper has prepared a new master template for the Newsletter. She attached a copy of the new template to the memorandum and supplied Respondent with an electronic copy. Advising that "[n]ot much is changing in the new template," the memorandum states that the electronic version of the Newsletter contains a style sheet to assure uniformity of all fonts and text sizes. The memorandum states that the newsletter will conform to other District publications, including its use of color. The memorandum requests an electronic copy of the Newsletter mailing list by December 3, so that Ms. Hickenlooper could submit the list to the Information Resources Department.
The November 30 memorandum states that Garrett Wallace would be seeking bids for printing the Newsletter and asks that Respondent give him a copy of the printing specifications by December 3. However, the memorandum advises Respondent that he
will still be responsible for coordinating the printing and mailing of the Newsletter and advising the Information Resources Department of updates to the mailing list.
The November 30 memorandum states that Petitioner will continue to publish the Newsletter quarterly. The memorandum elaborates:
For planning purposes, the [N]ewsletter is to be published on or about the first week in January, April, July and October. To accomplish this goal, you will be responsible for developing a production schedule at the beginning of each quarter.
. . . Submit the schedule to me, in writing, the first week of each quarter along with the proposed story list. I will review both and return to you with any comments.
The November 30 memorandum contains an "example" production schedule:
Jan. 7--Potential story list due to Beth for review.
Jan. 14-Feb. 4--Johnnie gathers information for articles, gathers art and/or takes photographs, writes articles. Johnnie obtains source approvals for articles.
Feb. 7--All draft text in Word documents due to Beth for review. Beth will pass along text to technical editor for second review. Feb. 21--Text is returned to Beth. Any necessary rewrites are done by Johnnie. If rewrites are necessary, draft text is again given to Beth for review before text is put in the layout.
Feb. 28-March 10--Johnnie finalizes layout. March 13-24--Beth and technical editor review document layout; any changes needed are returned to Johnnie to make during this time.
March 27-31--Linda B[urnette, Director of the Office of Communications] reviews document.
April 3--Document sent to printer.
The November 30 memorandum supplies a copy of a tracking form for use in obtaining the approval of text in accordance with the review process used by the Office of Communications. The memorandum offers a "few tips" to prevent "overcrowding" the Newsletter. These suggestions include determining the maximum word count for each page and writing articles in Microsoft Word to avoid exceeding the maximum length, refiguring the word count when including art in the article, laying out paragraphs that are no longer than seven lines deep, and leaving specified margins of white space around each art boxes and below the heading at the top of each text
box.
By separate memorandum, also dated November 30, 1999,
Ms. Hickenlooper listed several office procedures of the Office of Communications. These procedures include the submittal of a weekly report of daily activities and projects, which Respondent could submit by e-mail or fax; schedule for the following week; biweekly time sheets, which Respondent must submit by fax; by December 3, a list of leave scheduled for the first quarter of 2000; and, by December 10, a list of organizations in which Respondent, on behalf of Petitioner, is active.
The office-procedures memorandum directs Respondent to attend a weekly staff meeting each Tuesday at 9:00 a.m. in Palatka, arrange his schedule to avoid compensatory time, not to attend community or school functions unless approved by his supervisor or other appropriate person, not to disseminate news releases, undertake the general writing assignments given him as a member of the Office of Communications (although "much of your focus will remain with the lagoon"), and attend the "refresher training" that Ms. Hickenlooper and Mr. Wallace will schedule for Respondent over the next several months "to keep you aware of trends in the public relations and publishing fields." The office-procedures memorandum states that Mr. Wallace is obtaining a newer computer for Respondent's work station to "eliviate [sic] any computer-related problems in meeting your work goals."
The office-procedures memorandum concludes:
With the changes in the District, we will all need to make adjustments to make sure we stay focused on the goal of producing the best possible publications to deliver the District's message in the most effective way. I will do my best to assist you and help you to adjust in any way I can. All you have to do is pick up the phone.
Accompanying both November 30 memoranda is a detailed description of Respondent's job responsibilities. By time, Respondent's responsibilities break down as follows:
45 percent--performing research and writing for the Newsletter and other publications, as well as scripts and speaking points;
15 percent--executing layout and design work for the Newsletter and other projects, as assigned; 10 percent--producing and obtaining photographs and graphics for the Newsletter and other projects, as assigned; 10 percent--participating in and setting up booths at outreach events, as assigned; and 5 percent
each--coordinating printing of the Newsletter, assisting with outreach programs, responding to public inquiries and forwarding callers to Regional Communications Coordinators, and performing other assigned duties.
The job description states that Respondent must have knowledge of the Associated Press style manual and basic layout and design, skill in written communication and basic photography, and ability to organize effectively and "demonstrate good customer service to internal and external customers."
Also accompanying the November 30 memoranda is a set of performance standards applicable to Respondent's job. Described as a "critical function," the first standard is: "A complete edition of the [Newsletter]." This task represents 40 percent of Respondent's job. Satisfaction of this standard is a function of: "Accuracy of information, accuracy of following style, timeliness of news content, timeliness of production,
quantity. Measurements determined by observations and records of supervisor, project-tracking sheets, employee weekly reports."
To earn a "meets expectations" rating, Respondent must accomplish the following items:
Product is produced quarterly (4 issues each year to be published in approximately January, April, July, and October).
90-95 percent of the document is error free when printed.
60-75 percent of the articles in the document is [sic] written by the employee.
85 percent of photography is taken by employee and other graphics needs are coordinated by the employee.
Photos and other artwork (digital and originating from scanned slides, photos, etc.) are sent to a designated graphics artist in the Office of Communications for proper processing to meet current publishing standards allowing the artist 7 to 10 days for processing.
80-90 percent of the layout and design is consistent with District style.
80 percent of the editions contain eight
(8) pages.
Employee ensures that all text and the draft product is [sic] reviewed through the Office of Communications internal review process.
Maintains subscription mailing list, forwarding additions or deletions to supervisor at the beginning of each month.
To earn an "exceeds expectations" rating, Respondent must accomplish the following items:
[Same as 1. above.]
96-100 percent of the document is error free when printed.
76-100 percent of the articles in the document is [sic] written by the employee.
86-100 percent of photography is taken by employee and other graphics needs are coordinated by the employee.
Photos and other artwork (digital and originating from scanned slides, photos, etc.) are sent to a designated graphics artist in the Office of Communications for proper processing to meet current publishing standards allowing the artist 11 days or more for processing.
91-100 percent of the layout and design is consistent with District style.
81 percent or more of the editions contain eight (8) pages.
Employee ensures that all text and the draft product is [sic] reviewed through the Office of Communications internal review process.
[Same as 9. above.]
Produce extra editions, as needed.
Add extra pages to an edition, as needed.
Described as a "critical function," the second performance standard is: "Written text for a variety of documents or other uses (StreamLines, WaterSpout, speeches,
scripts, fact sheets, brochures, etc.)." These tasks represent
30 percent of Respondent's job. Satisfaction of the standard is a function of: "Accuracy of information, accuracy of following style. Measurements determined by observations and records of supervisor, project tracking sheets, employee weekly reports."
To earn a "meets expectations" rating, Respondent must accomplish the following items:
The text is free of scientific or technical jargon unless such terms are necessary for the understanding of the text/article and such terms are defined.
80 percent of all text written throughout the calendar year is free of errors in grammar, style, spelling, syntax, etc., and follows District style.
Text meets the objectives of the client and/or supervisor.
Text is written at a reading level appropriate for the intended audience.
Employee ensures that all text has been reviewed through the Office of Communications review process.
Text assignment is completed no later than the due date assigned with each new assignment in 90 percent of the cases.
Provides a total of 6 articles on a variety of lagoon topics to any of the three EPA/NEP newsletters by the deadline requested by the EPA newsletter editor, following approval of the article through the Office of Communications review process.
To earn an "exceeds expectations" rating, Respondent must accomplish the following items:
80-100 percent of the text is free of scientific or technical jargon unless such terms are necessary for the understanding of the text/article and such terms are defined.
81-100 percent of all text written through the calendar year is free of errors in grammar, style, spelling, syntax, etc., and follows District style.
[Same as 3. above.]
[Same as 4. above.]
[Same as 5. above.]
Text assignment is completed on or before the due date assigned with each new assignment in 95-100 percent of cases.
Provides 7 or more articles on a variety of lagoon topics to any of the three EPA/NEP newsletters by the deadline requested by the EPA newsletter editor, following approval of the article through the Office of Communications review process.
Described as a "noncritical function," the third performance standard is: "A written report of the employee's weekly activities." This task represents five percent of Respondent's job. Satisfaction of this standard is a function of: "Quantity, timeliness."
To earn a "meets expectations" rating, Respondent must accomplish the following items:
For a minimum of 40 weeks during the year, the report is turned in to supervisor
by 4 p.m. each Friday (or the last day the employee is in the office before scheduled leave or a holiday).
Report lists daily activities.
Report lists projects on which the employee is working with a brief description of work accomplished toward completing assigned tasks and assignment due dates.
Offers supervisor oral reports, as needed, to supplement the written report.
To earn an "exceeds expectations" rating, Respondent must accomplish the following items:
For a minimum of 45 weeks during the year, the report is turned in to supervisor by 4 pm. each Friday (or the last day the employee is in the office before scheduled leave or a holiday.)
[Same as 2. above.]
[Same as 3. above.]
[Same as 4. above.]
Described as a "critical function," the fourth performance standard is: "Responses to staff and public requests for information." These tasks represent 10 percent of Respondent's job. Satisfaction of these tasks is a function of: "Timeliness, accuracy, records kept by District's complaint tracking program."
To earn a "meets expectations" rating, Respondent must accomplish the following items:
For printed material requests, responds to inquiries within 5 business days.
For verbal requests, determines if information can be supplied by employee or refers questions to the appropriate staff member or other agencies.
For verbal and written requests from the media, refers the requests to the appropriate Regional Communications Coordinator within 24 hours for nonemergency/noncritical requests, and within one hour for time-sensitive requests.
In 85 percent of cases, information disseminated is accurate.
To earn an "exceeds expectations" rating, Respondent must accomplish the following items:
For printed material requests, responds to inquiries within 3 business days.
[Same as 2. above.]
For verbal and written requests from the media, refers the requests to the appropriate Regional Communications Coordinator within the same work day for nonemergency/noncritical requests, and within one hour for time-sensitive requests.
In 86-100 percent of cases, information disseminated is accurate.
Described as a "noncritical function," the fifth performance standard is: "Outreach assistance." This task represents five percent of Respondent's job. Satisfaction of this task is a function of: "Quality."
To earn a "meets expectations" rating, Respondent must accomplish the following tasks:
Participates in not more than 10 outreach events annually with participation limited to no more than one per day per event (for a total of 10 days spent each year participating in events).
Arrives for work assignment no later than 10 minutes after the assigned work starting time.
Assists, as needed, with setup, take down and restocking of booths at events at which booths are used.
In 80 percent of cases, is familiar enough with the subject matter to completely answer questions of visitors to events.
To earn an "exceeds expectations" rating, Respondent must accomplish the following items:
Participates in events other than the predetermined 10 as assigned by the supervisor, production manager or Communications director.
Arrives for work assignment 5 minutes before the assigned work starting time.
[Same as 3. above.]
In 81-100 percent of cases, is familiar enough with the subject matter to completely answer questions of visitors to events.
Described as a "critical function," the sixth performance standard is: "A complete workday." This task represents 10 percent of Respondent's job. Satisfaction of this task is a function of: "Time sheets, leave slips, reports to
supervisor, global observations by other Communications and District supervisors."
To earn a "meets expectations" rating, Respondent must accomplish the following items:
95 percent of the time, reports to work no more than 10 minutes after work begins at
8 a.m. daily.
Reports to work unless late arrival has been previously approved or employee is on approved annual leave.
Calls supervisor at least 15 minutes before starting time to alert supervisor of need to be away from work due to illness or other emergency.
For annual, regular medical appointments or other such absences, arranges absences with supervisor at least one week before scheduled absence.
Works a full 8-hour day, with the exception of District-allowed 15-minute break in the morning and 15-minute break in the afternoon and one-hour lunch break.
95 percent of the year, successfully manages time to complete workload in order to avoid the need to work overtime or to gain compensatory time.
To earn an "exceeds expectations" rating, Respondent must accomplish the following items:
96-100 percent of the time, reports to work no more than 5 minutes after work begins at 8 a.m. daily.
[Same as 2. above.]
[Same as 3. above, except for omission of "or other emergency."]
[Same as 4. above, except substitutes "more than" for "at least."]
[Same as 5. above.]
96-100 percent of the year, successfully manages time to complete workload in order to avoid the need to work overtime or to gain compensatory time.
Petitioner's Policy 79-18, as last revised on February 10, 1999, establishes the procedures for performance evaluations of Petitioner's employees. Section II.F requires the employee's immediate supervisor to prepare the performance evaluation. Section VII.B requires the supervisor to provide each employee with the applicable performance standards and evaluate each employee in accordance with these standards.
Policy 79-18, Section IV.C requires the preparation of a performance evaluation for each employee by January 15 of each year. Section IV.D authorizes the preparation of a special performance evaluation "any time there is a significant change in job performance or where warranted to document exceptional achievements."
Policy 79-18, Section V.B.2 requires a corrective action plan to accompany any special evaluation determining that an employee's "overall job performance does not meet performance standards." Section II.B defines a "corrective action plan" as
a written document "detailing what the employee must do and how the supervisor will assist the employee to improve job performance so that he/she is meeting the performance standards of the position."
Policy 79-18, Section V.B.3 requires the supervisor to reevaluate the employee not more than 60 days after the effective date of the initial unsatisfactory evaluation. If the supervisor determines that the employee's performance still fails to meet performance standards, the supervisor "may" give the employee not more than 60 additional days within which "to improve his/her job performance." If, at the end of the second period, the employee's job performance still does not meet performance standards, Petitioner "shall" start proceedings to terminate the employee.
Under Respondent and Mr. Smithson, Petitioner published only two editions of the Newsletter in 1999. Arguably, Petitioner published three editions in 1999 because the third edition--Winter 1999--came out one month early, in December 1998, due to surgery that Respondent had scheduled.
Three editions of the "quarterly" Newsletter were acceptable to Mr. Smithson, who was ultimately responsible for the publication prior to the reorganization. Mr. Smithson found that time demands permitted only three editions annually, and this schedule coordinated well with the budget cycle and the
three annual meetings of the Indian River Lagoon citizens' advisory committee. Mr. Smithson also supported flexible publication deadlines because they better accommodated updates of recent developments.
In any event, Respondent's work on the Newsletter was satisfactory to Mr. Smithson. Having served as Respondent's supervisor for all but two weeks of the evaluation period ending in mid-January 2000, Mr. Smithson provided considerable input into the 1999 performance evaluation of Respondent, who received a satisfactory evaluation.
Mr. Smithson probably did not anticipate that the reorganization would substantially change Respondent's relationship to the Indian River Lagoon National Estuary Program. In the fall of 1999, Ms. Burnette had assured
Mr. Smithson that the reorganization would not substantially change Respondent's job responsibilities, even though she did not yet know all of the details of the reorganization.
In several respects, the reorganization did not dramatically change Respondent's job. Respondent continued to work in the Palm Bay office, receive suggestions from
Ms. Hickenlooper on the Newsletter as he had since 1997, and work in the same office as Mr. Smithson and other staff in the Indian River Lagoon National Estuary Program.
In other respects, though, the reorganization dramatically changed Respondent's job. After becoming Respondent's supervisor, Ms. Hickenlooper insisted on close contact with Respondent, emphasized Respondent's writing responsibilities, and imposed high standards in written communication and internal organization.
Respondent's new supervisors, Ms. Hickenlooper and Ms. Burnette, have considerable experience in journalism, as contrasted to Respondent's primary experience in public relations. As Respondent candidly admitted at the hearing, the reorganization moved him from a stronger area--setting up and giving presentations and working personally with members of the public--to a weaker area--publications.
The change was also abrupt. There was no transition period after December 31, 1999. The only transition took place prior to the reorganization, when Ms. Hickenlooper began to involve herself in Respondent's work in the late fall of 1999. Respondent remained responsible for his pre-reorganization duties during this time, and Ms. Hickenlooper's pre- reorganization tasks did not facilitate Respondent's adjustment to the reorganization.
Another factor complicating the transition was
Ms. Hickenlooper's insistence on the immediate publication of the Winter 2000 edition. Ninety days are required to publish
the Newsletter. Prior to the reorganization, Respondent had targeted a January publication of the Winter 2000 edition, but, in accordance with Mr. Smithson's practice, the publication date was flexible. By insisting on a firm January publication date, Ms. Hickenlooper effectively accelerated the previously soft publication deadline.
At the same time, Respondent was trying to assimilate other substantial changes resulting from the reorganization. Many procedural changes followed from the simple fact that Respondent's direct supervisor no longer worked in the same office, or even the same part of the state. Making the transition more difficult, as Ms. Hickenlooper acknowledged in a January 2000 e-mail, computers in the Palm Bay and Palatka offices were unable to meet the demands of the publishing software, resulting in frequent computer crashes, lost work, and lost time.
After Respondent submitted his draft of the laid-out Winter 2000 Newsletter, Ms. Hickenlooper admitted, by e-mail to Respondent dated January 28, 2000, that "[t]his first edition as an official part of Communications will be a learning experience in how we expect things to be done." Ms. Hickenlooper also attached to the e-mail a detailed set of comments to the newsletter text that Respondent had submitted.
Almost without exception, Ms. Hickenlooper's comments identify significant flaws in Respondent's writing and analytic processes and offer good, concrete solutions. Prior to the reorganization, Respondent's writing was undermined by occasional instances of inconsistent usage, unclear references, awkward word order, poor organization, and poor word choice. These writing problems occasionally surfaced in the pre- reorganization Newsletter, which also suffered at times from poor layout and design. At the time of the reorganization, Respondent's writing was inadequate, primarily due to excessive instances of inapt word choice and inept organization.
By memorandum dated February 7, 2000, Ms. Hickenlooper comprehensively expressed her dissatisfaction with Respondent's work and attached a marked-up draft of the laid-out newsletter. Focusing on Respondent's deviation from District style,
Ms. Hickenlooper's memorandum, revealing evident frustration with Respondent's past dealings with the Office of Communications, notes that she and Ms. Burnette had made similar requests of him in memoranda in August and November 1998 and June 1999, as well as in numerous e-mails and the November 30, 1999, documents detailed above. The February 7 memorandum contains a detailed discussion of Respondent's style errors and concludes with the warning: "If you continue to fail to follow directions, procedures and policies of this office and of the
District, your behavior will result in disciplinary action being taken." Ms. Hickenlooper's style comments are detailed and entirely justified; they are also accompanied by specific corrections.
In February 2000, Ms. Hickenlooper spoke with Robin Hudson, Petitioner's human relations manager. After describing her dissatisfaction with Respondent's work and noncompliance with office procedures, Ms. Hickenlooper asked for guidance.
Ms. Hudson suggested that Ms. Hickenlooper continue to work with Respondent and evaluate his performance over the next 30 to 60 days. If his work remained unsatisfactory, Ms. Hickenlooper could then perform a special evaluation.
Thirty days later, Ms. Hickenlooper performed a special performance evaluation of Respondent. The evaluation, which is dated March 14, 2000, reprints the six performance standards previously detailed in the November 30, 1999, memorandum. Ms. Hickenlooper presented Respondent with the evaluation, as well as the below-described corrective action plan, on March 21, 2000.
As for the first standard, which is publishing the Newsletter, the performance evaluation is unreasonable and substantially unfounded. This part of the evaluation focuses on Respondent's failure to meet various deadlines for the Winter 2000 edition. As already noted, Ms. Hickenlooper's assumption
of ultimate responsibility for the Newsletter was too late in the then-pending publication cycle to impose the new procedures for that edition, especially while effectively accelerating the publication date.
One comment at the end of this section of the performance evaluation is misleading. Without offering supporting authority, Ms. Hickenlooper complains that Respondent "should be skilled in electronic layout."
Exacerbating the pressure caused by Ms. Hickenlooper's imposition of a firm publication deadline and demanding internal procedures was Respondent's relative unfamiliarity with electronic publishing. Although, as already noted, the pre- reorganization Newsletter sometimes suffered from poor layout and design, it never suffered from the glaring mistakes that marked Respondent's early attempts at electronic publishing. Prior to the reorganization, a subcontractor performed the electronic publishing tasks that Ms. Hickenlooper expected Respondent suddenly to perform. The unreasonableness of her expectation was heightened by the computer problems that Respondent was experiencing and Ms. Hickenlooper's refusal to grant Respondent's request to send him to an external seminar on electronic publishing software, such as Quark or Photoshop.
As for the second standard, which is writing text for a variety of purposes, the performance evaluation focuses on
Respondent's previously described contributions to the Winter 2000 Newsletter, as well as undisclosed contributions to another District publication. At this point, Ms. Hickenlooper's criticisms of Respondent's writing are justified; nothing in the reorganization should have surprised Respondent in terms of the expectations imposed upon him with respect to clear, effective written communication.
As for the third standard, which is weekly activity reports, the performance evaluation asserts that Respondent reported that he was "coordinating" with the non-District coordinator of the Indian River Celebration, but that Office of Communications staff had received calls from this coordinator asking why she had not heard from Respondent. The coordinator testified at the hearing that Respondent had called her several times during January 2000 regarding the upcoming celebration, and she was "appalled" at Ms. Hickenlooper's assertion that Respondent had not adequately coordinated with her.
This part of the performance evaluation also claims that, in one of Respondent's weekly activity reports, he claimed to have processed 90 e-mails over two days when District computer records reflect no more than 20 such e-mails. This discrepancy seems to have arisen from Respondent's practice of counting e-mail messages, including duplicates and copies, as
opposed to Petitioner's practice of counting only e-mail messages directly addressed to Respondent.
The assertions in this part of the performance evaluation are unfounded and largely immaterial. However, none of the assertions--even if justified--in this part of the performance evaluation would preclude the assignment of the superior rating for this activity-report standard, which is measured by: "Quantity, timeliness"--not contents.
As for the fourth standard, which is responses to staff and public requests for information, the performance evaluation complains that Respondent responds to telephoned requests by staff for information by e-mail and apparently attempts to determine if staff need the requested information before supplying it. Somewhat contradictorily, this part of the performance evaluation also asserts that Respondent "often brings in other lagoon staff or consults other District personnel in a manner in which he has not been instructed to do before answering a question." The only detailed complaint under this part of the performance evaluation is that, in response to an inquiry from his supervisor as to whether he had ordered mailing labels for the Winter 2000 newsletter, Respondent called the printer, the post office, and an administrative employee-- unknowingly performing work that his supervisor had already done. However, this complaint only provides additional evidence
of a lack of communication between Respondent and his supervisor and not necessarily a failing of Respondent.
Again, the assertions contained in this part of the performance evaluation do not correspond to the criteria by which Respondent is to be evaluated under this standard: "Timeliness, accuracy, records kept by District's complaint tracking program." Nothing in the record suggests that Respondent could not earn a superior rating under this standard.
As for the fifth standard, which is outreach assistance, the performance evaluation notes no adverse comments from the public or staff.
As for the sixth standard, which is a complete workday, the performance evaluation states that, on January 11, 2000, Respondent's supervisor told Respondent to submit his timesheets by 9:00 a.m. on the following day. He failed to do so, but, when called the following morning, he faxed the sheets within one-half hour. However, his projected work for the next two days brought him to 45 hours for the week. His supervisor then called him and told him to take five hours off the rest of the week to avoid compensatory time.
This part of the performance evaluation also notes that Respondent's absence on February 11, 2000--a Friday--was communicated to the Office of Communications on the same day by an e-mail from a lagoon employee. The following Sunday night,
Respondent e-mailed his supervisor that he would probably be out all week. The supervisor replied with an e-mail stating that Respondent needed to call her to report personally that he would be out ill. When Respondent returned to work on February 21, he then failed to inform his supervisor.
The prime problem here is the means of communication: e-mail rather than telephone. The seriousness of this departure from policy is belied by the fact that the notice itself is more important than the means of the notice. Also, this performance standard does not require Respondent to confirm his return to work.
The March 14 special performance evaluation concludes in part:
Johnnie's supervisor and others in the Office of Communications have made many efforts to make Johnnie feel welcomed in his new office and to provide him verbal and written information to assist him in completing assignments and to adjust to his transfer from the Department of Water Resources. These efforts were made prior to the transfer becoming final on Dec. 31, 1999, and have continued since then.
The record does not support these statements in their entirety. Ms. Hickenlooper welcomed Respondent's arrival, but as an opportunity to improve the Newsletter, which had been marred by inconsistent writing, editing, layout, and design. The record does not disclose any effort by Ms. Hickenlooper to
make Respondent feel welcomed. Ms. Hickenlooper provided Respondent with considerable verbal and written information.
Her criticism of his writing proved helpful, as discussed below. However, a recurrent pattern in much of Ms. Hickenlooper's supervision of Respondent was her establishment of performance standards and documentation of his deviations from these standards in a transparent effort to terminate his employment.
Accompanying the March 14 performance evaluation is a corrective action plan. The corrective action plan informs Respondent that he will be re-evaluated in 30 days "to determine if his performance has improved and meets performance standards."
The corrective action plan states, in part:
Written text
Write in the journalistic style, using the inverted pyramid, giving most important facts first, followed by supporting information.
The employee is to follow District
style and Associated Press style in text unless otherwise instructed by his supervisor.
Study the "Associated Press Style and
Libel Manual." In 25 days, the employee will be given a written assessment on AP style as prepared by his supervisor to show a proficiency in AP style.
Read and study the excerpts provided by
the supervisor from the book "The Word" by Rene J. Cappon to strengthen journalistic writing style.
Practice journalistic writing by submitting a text file to supervisor by close of business each Friday for four weeks effective immediately. The text file must contain a lead paragraph and one or two supporting paragraphs, written in news style using facts supplied by the supervisor. Employee must adequately demonstrate to supervisor an ability to write in the District's and Office of Communications' preferred style and format.
* * *
Terms will be used consistently and correctly.
Text will be written so that it answers
the "who, what, when, where, why and how" of the journalistic style and to be obvious to the reader as to why the information is important to him or her.
Text will be written so as to be clear
as to the District's involvement in the event or activity being written about.
The employee will use the spell check
feature provided in the various software programs (Word, QuarkXpress, Lotus Notes) he uses before sending out any correspondent or other documents.
Graphics/art work
Employee is to supply all graphics, photos and other art work to be used in the "Indian River Lagoon Update" to the Communications photographer for proper scanning, color balancing and technical support as spelled out in the employee's performance standards.
The employee will not be involved in other graphics work, such as scanning art work for presentations, posters, flyers, letters, etc. The employee is to direct persons making requests for graphics assistance to the Office of Communications.
Layout/design
Employee will use the electronic template supplied by the Office of Communications for the production of the "Indian River Lagoon Update."
The template will not be altered in
such a way as to change the design, format or style.
All layouts will follow the review
procedures outlined on the Office of Communications tracking sheet.
The employee will submit each edition
of the lagoon newsletter to his supervisor in electronic form on a zip disk for its final edit/review.
All layouts will follow District style.
Communication
It will be the employee's responsibility to call his supervisor each work day from his work station between 8 a.m. and 8:15 a.m., but no later than 8:15 a.m., to report to his supervisor that he is at work and to discuss his planned day's activities so that the supervisor can prioritize the workload. . . .
The employee is to be available to
answer telephone calls from the supervisor during normal work hours (8 a.m. to 5 p.m., Monday through Friday), unless the employee is
preapproved to be away from the office.
The employee will take his one-hour lunch break no earlier than 11:30 a.m. When the lunch hour is taken later than 11:30 a.m., the employee will take his break in time to return to the office no later than 1 p.m.
The employee will write his weekly report in such language so as to more accurately reflect what was actually done or accomplished.
The employee will add to his weekly
report the amount of time it takes to accomplish each task.
The employee will communicate by telephone with his supervisor in a timely fashion on matters that need immediate attention. An e-mail message may be sent by the employee for written verification of oral conversations.
Professional conduct
The employee will communicate with his supervisor, co-workers, District staff and the public in a professional manner at all times.
The employee will not use offensive or
demeaning language or other language that gives the impression of being uncooperative, intimidating, harassing or otherwise abusive to his supervisor, co-workers, District staff or the public.
The assessment of Respondent's response to the March
14 evaluation documents requires identification of his work after March 14. Unfortunately, Paragraphs 24, 27, and 32 of Petitioner's proposed recommended order confuses the order of events because these proposed findings find violations of the March 14 evaluation documents in Petitioner Exhibits 17 and 18, which pertain to the Winter 2000 Newsletter. The Winter 2000 edition generated the most salient criticisms contained in the March 14 evaluation documents; the Winter 2000 edition obviously preceded the March 14 evaluation by several weeks, so Respondent's reliance upon the Winter 2000 edition to prove violations of the March 14 evaluation documents is misplaced.
Much of Respondent's work on the Spring 2000 Newsletter also preceded the March 14 evaluation documents. An
e-mail to Respondent from Ms. Hickenlooper dated February 14, 2000, accompanies her comments on rough text for the Spring 2000 edition that Respondent had submitted to her on February 8.
Another e-mail to Respondent from Ms. Hickenlooper dated March 2 accompanies a second edit that she and a technical person had performed on Respondent's rewritten text. Respondent completed the first laid-out draft, whose text remained substantially unchanged from that time forward, on March 13--one day prior to the March 14 evaluation documents.
Although Respondent's work on the text of the Spring 2000 Newsletter precedes the March 14 evaluation documents, some of his layout work on the Spring 2000 Newsletter followed the March 14 evaluation documents. Responding to an early layout of the Spring 2000 Newsletter, Ms. Hickenlooper wrote, in a handwritten note dated April 5:
Your efforts to clean up the layout are getting better. There are still things you need to fix before I can forward it on. I could make the corrections myself in a few minutes, but I need you to see what has to be done so you can learn to spot these things. I've made some notes for you on how to fix the problems. You should be able to see all these things on your screen even if you don't have the ability to print out proof copies there. If you have questions, please let me know.
Ms. Hickenlooper's acknowledgement of Respondent's inability to print his work-in-progress at his Palm Bay office
is important. For substantially all, if not all, of the period in question, Respondent was unable to print out screens displaying laid-out pages of the Newsletter. The programs that he used were not entirely "what you see is what you get," so the inability to print out work, together with his early computer problems and lack of software training, seriously undermined Respondent's ability to produce satisfactory product in terms of design and lay-out. Even so, Respondent's shortcomings in electronic publishing were evidently minor by this time, as
Ms. Hickenlooper could fix them "in a few minutes." In any event, all of these factors preclude the inference that Respondent refused or was unreasonably unable to produce satisfactory work in the area of electronic publishing.
The best measures of Respondent's response to the portions of the March 14 evaluation documents pertaining to his writing deficiencies are the written exercises that he submitted over the following month.
Respondent completed eight written exercises from March 24 through April 21, 2000. Each exercise provides a set of facts from which Respondent must prepare a lead paragraph and at least two supporting paragraphs. Respondent submitted the exercises in pairs at approximately regular intervals during the one-month period. However, rather than supply her comments to each set, shortly after its submission, Ms. Hickenlooper
provided her comments to all eight exercises by memorandum dated May 12, 2000.
Respondent submitted the first two exercises by e-mail dated March 24. In the first exercise, which addressed the loss by fire of 45,000 acres owned by Petitioner of the 450,000 acres statewide, Ms. Hickenlooper accurately notes that Respondent incorrectly buried the most salient fact in the third paragraph of the seven-paragraph "story." She also corrected a couple of usage mistakes.
In the second exercise, which addressed the impact of Petitioner's tax rate on the average property-owner,
Ms. Hickenlooper fairly pointed out that Respondent's lead paragraph was primarily fluff, which may have been satisfactory for a story concerning a school outing, but was clearly unsatisfactory for a story concerning a major pocketbook issue. She showed Respondent two points that he buried in his six- paragraph "story," but that should have been in the lead paragraph.
Respondent submitted the third and fourth exercises by e-mail dated April 7. Again, Ms. Hickenlooper correctly noted that Respondent buried important information in his third exercise, unnecessarily added "general" to "public," misused a word in the phrase "construction of . . . programs," and
misstated the facts. However, the fourth exercise was flawless, except for a fairly minor usage error.
The problems contained in the first three exercises betrayed Respondent's occasional difficulty in organizing his material. In his pre-reorganization Newsletters, Respondent sometimes failed to write an effective lead paragraph, seeming at times not to grasp the main theme of his material.
Respondent submitted the fifth and sixth exercises by e-mail dated April 14. The fifth exercise was flawless. The sixth exercise is nearly flawless. Although the lead paragraph is adequate, Ms. Hickenlooper correctly notes that Respondent could easily have punched-up the lead, and she correctly deletes "area" after "19-county District."
Respondent submitted the seventh and eighth exercises by e-mail dated April 21. The seventh exercise was nearly flawless. Ms. Hickenlooper's criticism of the lead paragraph in the eighth exercise seems strained, both as to her claims of blandness and the unanswered "why" question.
Ms. Hickenlooper's final criticism of the eighth exercise is unfair. She states: "Part of the assessment was to determine if Johnnie could spot and correct the error in Spontak's title and office name." This is untrue. The instructions on the cover sheet state: "Use the pertinent information from the following list of facts to write a lead and
at least two supporting paragraphs for each article listed. Write in the journalistic format, using Associated Press style and District style." Nothing on the cover sheet or the already- quoted corrective action plan notified Respondent that these exercises also were to test his substantive knowledge of District staff and their titles.
As discussed below, Ms. Hickenlooper performed the second evaluation of Respondent on May 19. By returning all of the exercises submitted over the preceding month one week prior to the date of the second evaluation, Ms. Hickenlooper emphasized the evaluative, rather than remedial, role of these exercises.
The same distinction between evaluative and remedial purposes characterizes Ms. Hickenlooper's administration of the Associated Press style test, which took place on April 17. Her memorandum to Respondent dated April 17 suggests that the purpose of the test is "to pinpoint some areas in which it would help you to do some further studying of AP style." This is a legitimate objective and reasonable use of the test.
However, Petitioner's attempt to use the results of this assessment as quantitative evidence of Respondent's incompetence in written expression distorts the purpose of the test. Nothing in the record supports a performance standard of memorization of the Associated Press style manual. Respondent's
job required him to use, not memorize, this style source, and the test, as administered by Ms. Hickenlooper, properly identified for Respondent his forms of usage that did not conform to Associated Press style. The proper role of this test is evident: it is to alert Respondent to his tendency, prior to the reorganization, to display little regard for consistency in style, let alone conformance to an external style authority, such as the Associated Press style manual.
On May 19, 2000, Ms. Hickenlooper prepared a second special performance evaluation of Respondent. This evaluation is in the same form as the March 14 performance evaluation, except that it lists the additional performance standards contained in the March 14 corrective action plan.
The first substantive criticism concerns the written text for the Spring 2000 Newsletter. For the most part, this criticism is unwarranted because it pertains to text that Respondent prepared prior to March 14. To the extent that this criticism pertains to text that Respondent prepared after March 14, this criticism is unsupported by the record, which clearly reveals little post-March 14 revision of the text of the Spring 2000 Newsletter.
The second substantive criticism concerns the layout of the Spring 2000 Newsletter. This criticism is unwarranted due to Respondent's inexperience with electronic publishing
programs, Petitioner's refusal to provide the external training that Respondent needed and requested, and Respondent's lack of a suitable computer and any printer to learn and perform electronic publishing. Despite these handicaps, Respondent made meaningful progress in layout and design during the period covered by this performance evaluation.
The third substantive criticism reveals an omission from the record. Ms. Hickenlooper found that Respondent repeated many of the same mistakes in his text for the June 2000 Newsletter. Although Petitioner Exhibit 21 bears the title, "Comments on June 2000 Newsletter Articles," in the Administrative Law Judge's index to exhibits, the actual exhibit, as supplied by Petitioner in its notebook of exhibits, consists of Ms. Hickenlooper's detailed comments on Respondent's text for the Spring 2000 Newsletter, as well some minor stories that Respondent had prepared for another District publication.
Although the Summer 2000 text bearing
Ms. Hickenlooper's revisions is missing from the record, Respondent supplied two documents that partly fill this void. Respondent Exhibit 13 is a first draft of the Summer 2000 text, with an approving comment from Mr. Smithson. Respondent Exhibit
40 is the Summer 2000 Newsletter. The following findings assume that Ms. Hickenlooper dictated all changes between the early
draft and the final printed version, even though Respondent himself may have made some of these revisions without prompting.
A comparison of Respondent's draft text with the published text does not support Ms. Hickenlooper's assertion in the May 19 performance evaluation that Respondent was repeating the "same type of errors he has made in previous writing assessments," such as "errors in AP style, district style, subject/verb agreement, and use of jargon and unfamiliar terms without explanation."
To the contrary, Respondent's draft text contained no subject/verb problems and no jargon or unfamiliar terms. He appears to have misnamed Audubon of Florida and committed a few other style errors, but many fewer than he had committed previously. Ms. Hickenlooper printed several of his articles without substantial editing. Although this was Respondent's most important work product following the March 14 performance evaluation, it earns only two sentences of comment in the May 19 performance evaluation.
Much of the remainder of Ms. Hickenlooper's evaluation of Respondent is flawed. Although Respondent's writing skills are the most important area of concern, Ms. Hickenlooper addresses little attention to the Summer 2000 text, as noted above, or the eight written exercises, which are the subject of three sentences in her evaluation. Moreover, the three
sentences misstate Respondent's work. He did not miss the major point in half of the exercises, as Ms. Hickenlooper asserts; the last five exercises were entirely satisfactory. Also,
Ms. Hickenlooper neglects to mention that Respondent's work improved over the one-month period covered by the exercises.
Ms. Hickenlooper's evaluation of Respondent's written work also suffers from a repeated failure to adhere to the quantifiable standards applied to the evaluation of Respondent's work. Of greatest importance here is the standard of 90 percent error-free text, but Ms. Hickenlooper never quantifies the rate of error of Respondent's text. The only attempt by
Ms. Hickenlooper to quantify Respondent's error rate in written expression was in the Associated Press style test, but, as already noted, this was a misuse of the test.
Some other items cited by Ms. Hickenlooper also suffer from a failure to conform to an applicable standard, such as the vague complaint that Respondent's assistance to staff requests is "not always as prompt" as is his assistance to other persons seeking his assistance. Nothing in the fourth performance standard or the associated supplemental requirements imposed by the corrective action plan, to which this complaint pertains, imposes this obligation upon Respondent.
Other items cited by Ms. Hickenlooper appear to be in error, such as the timeliness of Respondent's weekly reports.
At points, Ms. Hickenlooper's complaints are petty, as when she faults him for stating in an e-mail to an Office of Communications coworker that an attachment was so large that it would take three minutes to open, so "now's a good time to take a bathroom break." Ms. Hickenlooper claims that she found offensive Respondent's use of the word "bathroom," but it is more likely that the source of her displeasure was Respondent's implied criticism of, specifically, the office equipment and procedures and, generally, the Office of Communications.
Ms. Hickenlooper concludes the May 19 performance evaluation by finding that Respondent has not "significantly improved" and recommending that Petitioner give him 60 additional days within which to improve and conform to his performance standards, as supplemented by the corrective action plan.
On July 31, 2000, Ms. Hickenlooper prepared a third and final special performance evaluation of Respondent. In this evaluation, Ms. Hickenlooper's criticisms of Respondent's layout and design, which focus on the Summer 2000 Newsletter, are undermined by the same mitigating factors already discussed concerning electronic publishing.
Ms. Hickenlooper's criticism of Respondent's writing necessarily pertains to non-Newsletter tasks because Respondent had completed most of the text for the Summer 2000 Newsletter
prior to May 19 and evidently had not prepared much, if any, of the text for the Fall 2000 Newsletter prior to July 31.
Ms. Hickenlooper's criticism of an indexing project assigned to Respondent seems to reveal bad communications between her and Respondent rather than poor writing by Respondent on this fairly simple assignment. Even so,
Ms. Hickenlooper acknowledges that "Johnnie has made some improvement in his writing and work skills. During the last 60 days, he has met all but one of the deadlines to submit his work to his supervisor."
Ms. Hickenlooper also acknowledges that Respondent has met other standards, such as submitting timely weekly activity reports and timely preparing timesheets and reports to his supervisor. A couple of problems regarding mailing lists and photographs appear to have resulted from poor communications between Ms. Hickenlooper and Respondent. Respondent rebutted a more-focused criticism concerning his omission of "Indialantic" from a story, with the result of an angry caller. Respondent produced the caller as a witness at the hearing, and she testified to her satisfaction with Respondent's handling of the matter. Another of Ms. Hickenlooper's complaints of Respondent's handling of requests for public appearances appears groundless because Respondent was merely doing what he had
previously been told to do by another staff person at the Office of Communications.
By letter dated August 14, 2000, Petitioner informed Respondent that, based on his three special performance evaluations in March, May, and July 2000, he had "not made the necessary improvements in [his] performance for [his] work to be considered satisfactory." Thus, pending the outcome of any hearings that Respondent might request, Petitioner intended to terminate Respondent's employment. By letter dated August 31, 2000, Petitioner terminated Respondent's employment.
Policy 79-18, Section V.B.3.b applies the provisions of Petitioner's disciplinary policy to the termination of an employee who has completed his or her probationary period, as had Respondent at the time of his termination. Policy 80-10, Section III.D.6 gives such an employee the right to an administrative hearing, pursuant to Chapter 120, Florida Statutes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes.
Petitioner has the burden of proving by a preponderance of the evidence the bases for Respondent's termination. Petitioner's policies authorize termination for
the failure of an employee to meet job performance standards, but require that Petitioner give a nonprobationary employee, such as Petitioner, a reasonable opportunity to correct any deficiencies prior to termination.
In several respects, this is a difficult case. Many of Respondent's complaints are groundless. Petitioner clearly has the right to reassign employees to meet District needs, although Petitioner must provide the employees with the equipment and reasonable training to assist them if they are taking on new duties or former duties at a higher level of performance. Respondent has no vested employment right to drive around East Central Florida giving speeches at schools and attending lagoon cleanups sponsored by community groups, especially as the District gradually assumed greater responsibility for funding lagoon programs. Undoubtedly, Petitioner had the right to assign Respondent to writing responsibilities exclusively and could reasonably expect that Respondent, as a public communications specialist, should be able to write competently.
Respondent's reliance upon the approval of his coworkers of the pre-reorganization Newsletter is also misplaced. After the reorganization, the Newsletter improved noticeably in writing, editing, layout, design, and attention to
detail. Respondent obviously had no vested right in the mediocrity of the pre-reorganization Newsletter.
Following the reorganization, the Newsletter benefited from the writing and editing talents of
Ms. Hickenlooper and the layout and design talents of her and her technical staff. It is impossible to find fault in
Ms. Hickenlooper's understandable frustration with Respondent's unwise failure to follow her editorial suggestions prior to the reorganization.
However, in contrast to her considerable publication talents, Ms. Hickenlooper displayed considerably less feel for her supervisory responsibilities, at least in evaluating the work of Respondent. Ms. Hickenlooper's numerous complaints with Respondent are more often scattergun than comprehensive and draw attention away from the real issue in this case, which is Respondent's writing. Ms. Hickenlooper's reliance upon ungrounded or venial assertions inspires little confidence in her ability or willingness to evaluate Respondent in an informed and measured manner. But these shortcomings in
Ms. Hickenlooper's evaluations of Respondent do not necessarily mean that Respondent's written work was adequate.
Ironically, the intricately detailed performance standards may have impeded Ms. Hickenlooper's ability to evaluate Respondent effectively. The standards create the
illusion of greater precision than is probably available in assessing writing.
The performance standards often carelessly incorporate quantitative criteria. For instance, the second performance standard assigns Respondent a "meets expectations" rating if his text is free of jargon, but assigns him an "exceeds expectations" rating if his text is 81-100 percent free of jargon. The first performance standard assigns Respondent a "meets expectations" rating if 80 percent of the newsletters contain eight pages, but assigns an "exceeds expectations" rating if 81 percent of the newsletters contain eight pages; however, the annual publication of only four newsletters means that all of them must contain eight pages to satisfy either of these standards. The first performance standard, which is the exclusive standard applicable to the production of the Newsletter, fails to incorporate a standard for grammatical writing, except in published text that has already undergone editing; only the second performance standard, which applies to non-Newsletter writing, contains this important criterion for evaluating Respondent's unedited text.
More generally, the performance standards fail to supply a methodology to apply to the evaluation of Respondent's writing. Even if the 80-percent standard applied to Respondent's unedited writing in the Newsletter, the performance
standards do not explain whether the unit of evaluation is the word, clause, sentence, paragraph, or story. Nor do they explain if any weighing is to be applied to different types of errors, as errors in parallelism or even subject and verb agreement typically do not obscure meaning as readily as errors in word choice or organization.
Thus, not surprisingly, Ms. Hickenlooper's evaluations of Respondent's writing do not undertake the type of quantitative analysis demanded by the performance standards. Instead, her evaluations resort to an anecdote-driven form of subjective evaluation that, although potentially effective, finds little support in the present record.
The most serious shortcoming of Ms. Hickenlooper's evaluation of Respondent's written work is her failure to analyze his progress during the relatively brief six months that she supervised him before he was terminated. As established by Petitioner's policies, the purpose of evaluations and corrective actions plans is primarily remedial--that is, to help an employee make the necessary improvements so that his performance becomes satisfactory. Preoccupied with documenting a case for Respondent's termination, Ms. Hickenlooper missed numerous opportunities to consider thoughtfully Respondent's significant progress in writing. Judging from results over a relatively brief period, Respondent apparently worked hard to adjust to
Ms. Hickenlooper's insistence upon effective written expression and to assimilate her concrete suggestions to improve his writing.
Although the issue is close as to Respondent's writing, Petitioner has failed to prove, at this time, that Respondent's performance was deficient in any material respect at the time of the July 2000 special performance evaluation.
If Petitioner has not addressed the issue of back pay elsewhere in its policies and the law does not otherwise require an award of back pay, Petitioner should enter a final order reinstating Respondent without back pay.
It is
RECOMMENDED that the St. Johns River Water Management District enter a final order reinstating Respondent as a Public Communications Specialist III without back pay.
DONE AND ENTERED this 27th day of June, 2001, in Tallahassee, Leon County, Florida.
ROBERT E. MEALE
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2001.
COPIES FURNISHED:
Henry Dean, Executive Director
St. Johns River Management District Post Office Box 1429
Palatka, Florida 32178-1429
John W. Williams Deputy General Counsel
St. Johns River Water Management District Post Office Box 1429
Palatka, Florida 32178-1429
Johnnie D. Ainsley 1210 Walnut Grove Way
Rockledge, Florida 32955-4629
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 must be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 25, 2001 | Agency Final Order | |
| Jun. 27, 2001 | Recommended Order | Petitioner failed to show that employee failed to meet performance standards after expiration of corrective period. |
