STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
REGINA TRINKAUS, )
)
Petitioner, )
)
vs. ) Case No. 02-0570
)
SOUTHWEST FLORIDA WATER )
MANAGEMENT DISTRICT, )
)
Respondent. )
______________________________)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on June 3 through 7 and June 24 through 26, 2002, in Brooksville, Florida, before Lawrence P. Stevenson, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Regina R. Trinkaus, pro se
5127 Juliet Court
Spring Hill, Florida 34606
For Respondent: Lori A. Tetreault, Esquire
Southwest Florida Water Management District
2379 Broad Street
Brooksville, Florida 34604-6899
Frank A. Miller, Esquire Caglione, Miller & Anthony, P.A. 703 Lamar Avenue
Brooksville, Florida 34601
STATEMENT OF THE ISSUE
The issue presented for decision in this case is whether the Southwest Florida Water Management District (the District) had just cause to terminate the employment of Petitioner, Regina Trinkaus.
PRELIMINARY STATEMENT
On January 31, 2002, the District issued Notice of Final Agency Action discharging Ms. Trinkaus from the District's employment, effective on that date. Also on January 31, 2002, Ms. Trinkaus filed a timely petition for a formal administrative hearing pursuant to Chapter 120, Florida Statutes. In her petition, Ms. Trinkaus challenged the factual underpinnings of the District's various performance appraisals leading to her discharge. She demanded reinstatement to her former position, retraction of the allegedly erroneous performance appraisals, correction of other records contained in her personnel file, and "appropriate disciplinary action . . . for all parties responsible for the hostility directed toward me since summer 2000 and the deliberate distortion of the public record." On February 12, 2002, the District forwarded the petition to the Division of Administrative Hearings (DOAH) for assignment of an Administrative Law Judge and the conduct of a formal administrative hearing.
During discovery, Ms. Trinkaus began to assert that her discharge was in retaliation for her filing a workers' compensation claim relating to illness caused by mold in the District building in which she worked. On March 25, 2002, the District filed a motion in limine seeking to prohibit evidence of retaliatory discharge because such claims are not cognizable in a DOAH proceeding under Section 440.205, Florida Statutes, as held in Smith v. Piezo Technology and Professional Administrators, 427 So. 2d 182, 185 (Fla. 1983). By Order dated March 26, 2002, the undersigned denied the motion in limine. The undersigned agreed with the District that Ms. Trinkaus could not bring a retaliatory discharge case under Section 440.205, Florida Statutes, but concluded that she should be allowed to establish the underlying facts as part of her overall assertions that the stated reasons for her discharge were pretextual.
On March 29, 2002, Ms. Trinkaus filed a motion to amend
her petition to include a claim of retaliation under the "Whistle-blower's Act," Section 112.3187, Florida Statutes. The District opposed the motion on the ground that Ms.
Trinkaus was seeking to bring the action outside the 60-day period prescribed in Section 112.3187(8)(b), Florida Statutes.1 By Order dated April 4, 2002, the undersigned granted Ms. Trinkaus' motion to amend in reliance on Harris and Pottinger v. District Board of Trustees of Polk Community
College, 9 F. Supp. 2d 1319, 1328 (M.D. Fla. 1998), in which the court held that the statute of limitations in Section 112.3187(8)(b), Florida Statutes, should be construed liberally in favor of plaintiffs, and that it was a question of fact as to when plaintiffs had knowledge of the allegedly wrongful terminations. Based on the limited pleadings, the undersigned concluded that Ms. Trinkaus should at least be afforded the opportunity to establish her claim, including the date upon which she became aware of the allegedly wrongful acts leading to her termination.
By Order dated April 24, 2002, the undersigned required Ms. Trinkaus to file an amended petition setting forth the specific factual allegations that entitled her to relief under Section 112.3187, Florida Statutes. On May 1, 2002, Ms.
Trinkaus filed her amended petition, alleging that she was subjected to mismanagement and a hostile work environment because she filed a workers' compensation claim for health problems caused by working in a "sick" building, and because she continued to raise concerns about the building within the District and in a request to the National Institute for Occupational Safety and Health for a building health hazard evaluation.
At the final hearing, the District twice entered oral motions to dismiss the Whistle-blower's Act claim. These were denied in order to give Ms. Trinkaus every opportunity to
establish her claim through testimony and evidence, and in recognition of the fact that she was representing herself in a lengthy and complex proceeding. At the close of all evidence, the District renewed its motion to dismiss the Whistle- blower's Act claim for failure of proof. At that time, Ms.
Trinkaus voluntarily withdrew her Whistle-blower's Act allegations.
At the final hearing, Ms. Trinkaus testified on her own behalf and presented the testimony of District supervisors Carolyn Joslin, administrative supervisor; Lucy Petruccelli, risk manager; Aimée Candal, human resources manager; Curtis Diggs, retired human resources manager; John Christ, human resources manager during the relevant period; District staff members Amrit Kaur, Violet Kelly, Pamela Lowe, Peggy Mecedo, and Rachel Vizer; and former District staff member Emily Carlsen. All of the witnesses other than Ms. Trinkaus were offered as rebuttal witnesses. Petitioner's Exhibits A through R were admitted into evidence. Exhibits A, G, and I were composite exhibits.
The District presented the testimony of Elaine Kuligofski, director of human resources; Eugene Schiller, deputy executive director of the division of management services; Kurt Fritsch, inspector general; and Steven Uebel, human resources manager. Respondent's Exhibits 1 through 48,
50, 52, 53, 55 through 58, 60 through 62, 64, 66 through 72, and 75 through 78 were admitted into evidence.
A Transcript of the hearing was filed on July 26, 2002. The parties agreed to file their proposed recommended orders within 30 days of the filing of the Transcript. By Order dated August 27, 2002, the parties' joint request for an extension of the time to file proposed recommended orders was granted. The parties timely filed Proposed Recommended Orders on September 3, 2002.
On September 10, 2002, Ms. Trinkaus filed a motion seeking an order reinstating her to her former position pending the outcome of this proceeding. The District filed its response in opposition on September 19, 2002. By Order dated October 3, 2002, the undersigned denied the motion on the ground that DOAH lacks the statutory authority to order the relief sought by the motion.
FINDINGS OF FACT
Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made:
The District is a special taxing district of the State of Florida, in accordance with Chapter 189, Florida Statutes. The District is empowered to hire and terminate employees.
Petitioner, Regina Trinkaus, was hired by the District on July 27, 1992. Throughout her employment, Ms. Trinkaus worked in the District's Human Resources Department (often referred to within the District as "HRD").
The Human Resources Department has 17 full-time employees. Its functions include benefits administration, employee relations, classification, compensation, salary administration, human resources information systems, training and staff development.
From July 1992 through August 1998, Ms. Trinkaus worked as a human resources specialist, her primary duties being the development and delivery of non-technical training programs to employees of the District, including the coordination of outside instructors to perform training for District employees. She also administered the District's program of tuition assistance for employees. During this period, her immediate supervisor was Garrett Johnson, a senior human resources specialist in the training and staff development section of the Human Resources Department. Mr. Johnson's supervisor was Curtis Diggs, a human resources manager, who in turn reported to Zolda Favot, the director of the Human Resources Department until her retirement in 1997.
Garrett Johnson resigned his position in August 1998.
Ms. Trinkaus was assigned Mr. Johnson's duties on an interim
basis during September and October 1998, and reported directly to Mr. Diggs.
In November 1998, Ms. Trinkaus was promoted to the senior human resources specialist position formerly held by Mr. Johnson. Her former position was eliminated, and its duties were folded into her new position. Ms. Trinkaus served as a senior human resources specialist until her discharge in January 2002.
While serving as a senior human resources specialist, Ms. Trinkaus reported to three different immediate supervisors. From November 1998 until July 2001, she reported to John Christ, a human resources manager. From July 2001 until October 8, 2001, she reported to Elaine Kuligofski, who had replaced Ms. Favot as director of the Human Resources Department on September 1, 1997. From October 8, 2001 until the date of her discharge, Ms. Trinkaus reported to Aimee Candal, a human resources manager.
The District uses a four-point rating system in its employee performance appraisal process. A rating of "4" signifies that an employee has consistently exceeded the performance objective relative to a position; a rating of "3" signifies that an employee has consistently met the performance objective relative to a position; a rating of "2" signifies that an employee has inconsistently met the performance objective relative to a position; and a rating of
"1" signifies that an employee has not met the performance objective relative to a position.
Prior to 1999, the District had a performance rating of "3A" that was the equivalent to what is now a rating "4." In 1999, the District replaced the rating of "3A" with the rating of "4."
Prior to 1999, the District had a performance rating of "ND," which stood for "Notable Distinction," a rating above and beyond the rating of "3A." In 1999, the District ceased using the rating category of "ND."
An employee’s performance appraisal is completed annually by his or her direct manager, with input from and the approval of the entire management chain. The rating year runs from October 1 through September 30. District performance appraisals rate employees in six categories: Job Knowledge, Behavior, Quality, Quantity, Dependability, and Communications. The requirements for each category are set forth on the performance appraisal form as follows:
Job Knowledge: The employee demonstrates the skills and knowledge required to deliver expected products and/or services in an efficient professional manner using initiative and creativity. Decisions are timely and based on careful thought and sound judgment. An awareness of safety and proper operation and care of assigned equipment, supplies and materials is shown. The employee develops new and/or updates skills and knowledge as required to improve performance.
Behavior: The employee interacts in a positive, professional and service-oriented manner with co-workers and customers.
Performs assignments in a cooperative manner and is adaptable to changes in the work environment.
Quality: Work assignments are complete, accurate, timely and performed in an efficient, cost-effective manner.
Quantity: The volume of assignments completed is appropriate for the position.
Dependability: The employee is consistent in demonstrating reliability, acceptable behavior, punctuality, appropriate use of accrued leave, and completing work assignments within designated deadlines.
Communications: The employee provides necessary and appropriate customer service in a professional organized manner while projecting a positive image through appearance, demeanor and mannerisms. This communication may be in the form of written, vocal or visual contact with both internal and external customers.
After rating the employee in each individual category, the manager then gives the employee an overall rating, which is not based on a mathematical averaging of the ratings in the six categories, but on the supervisor's subjective assessment of the employee's overall performance. Poor performance in a single category can lead to an overall rating lower than the mathematical average of all categories.
An annual overall rating of "3" or "4" results in a salary increase. An overall rating of "1" or "2" means the
employee does not receive a salary increase until he or she demonstrates improved performance.
An overall rating of "2" must include a Corrective Action Plan, which should specify the areas needed for employee improvement, and ways in which the employee might improve his or her performance.
Ms. Trinkaus received the following overall annual ratings during her employment with the District:
1993 | - Rating "3" |
1994 | - Rating "3" |
1995 | - Rating "3A" |
1996 | - Rating "ND" |
1997 | - Rating "3A" |
1998 | - Rating "3" |
1999 | - Rating "3" |
2000 | - Rating "2" |
2001 | - Rating "3" |
2001 | (Out-of-Cycle) - Rating "2" |
As to the categories of Job Knowledge and Quality, Ms. Trinkaus was consistently rated as exceeding expectations, even in those instances in which her overall rating was "2." At the hearing, there was a consensus among the witnesses that Ms. Trinkaus was an excellent trainer and, when motivated, performed her training duties in an outstanding manner.
However, throughout her tenure at the District, Ms. Trinkaus' performance was problematic in the areas of Behavior, Quantity, Dependability, and Communications. Specifically, Ms. Trinkaus had difficulty getting along with co-workers, tended to miss deadlines on assignments, and was
consistently late turning in paperwork such as travel vouchers and purchase orders for processing. From 1992 until
Ms. Kuligofski took over as director of the Human Resources Department, these problems were tolerated by Ms. Trinkaus' managers because her final work product was of such high quality.
At the hearing, Mr. Diggs summarized Ms. Trinkaus' performance: "Overall, I thought Regina [did] excellent work; the problem [was] getting her to do it." Mr. Diggs also testified that Ms. Trinkaus showed the proper respect for his position as a supervisor "when it suited [her]."
Ms. Kuligofski took over as director of the Human Resources Department on September 1, 1997, after having worked for a year and a half as an attorney for the District. She was promoted with a mandate to improve the image and outreach of the Department, which was perceived by District management as a "black hole" that processed a great quantity of paper but was not active in making employees aware of the services it offered.
Ms. Kuligofski's promotion to director was, in retrospect, a key event in the progression leading to
Ms. Trinkaus' dismissal. This was not because Ms. Kuligofski was hostile to her, as Ms. Trinkaus asserted, but because
Ms. Kuligofski introduced a management style uniquely unsuited to Ms. Trinkaus' temperament and work habits. Ms. Kuligofski
was an energetic, hands-on administrator who attended not only to the overall mission of her department but to the day-to-day activities of her subordinates. Much of Ms. Trinkaus' success was based on the fact that her supervisors ignored or tolerated her highhanded behavior and her failure to meet deadlines so long as the end product was of high quality. Ms. Kuligofski was not an administrator who would tolerate bad behavior or deviation from the District's administrative deadlines, regardless of the quality of the end results.
Ms. Kuligofski took over the Human Resources Department during the 1997 performance appraisal cycle and thus had little input as to the employee evaluations for that year. She did tell the employees that she assumed everyone in the Department was meeting expectations or they would not be there. She told them that she wanted everyone to start under her with a clean slate, and that she would not review their past performance appraisals. She committed to meeting with each employee regularly to help him or her understand her expectations.
Because she intended to reorganize the Department and initiate fundamental changes to its mission, Ms. Kuligofski believed it essential that her managers be intimately familiar with the employees in their charge and what exactly those employees were doing on a day-to-day basis. In the interest of providing more hands-on management, Ms.
Kuligofski added a second human resources manager position to the Department.
At the time she took over the Department,
Ms. Kuligofski was made aware of Ms. Trinkaus' performance problems through conversations with Mr. Johnson and Mr. Diggs. Near the end of October 1997, two employees complained to
Ms. Kuligofski about Ms. Trinkaus' behavior at a "brainstorming" session among several Department employees. They described Ms. Trinkaus as domineering, aggressive, controlling and argumentative, and told Ms. Kuligofski they no longer wanted to work with Ms. Trinkaus.
Ms. Kuligofski met with Ms. Trinkaus to discuss the situation. Also present were Ms. Trinkaus' direct supervisor, Mr. Johnson, and Mr. Diggs, the human resources manager. At the meeting, Ms. Trinkaus told the group that she was not feeling well on the day of the brainstorming session, that the purpose of the meeting was not well explained, that different people had different styles, and that the meeting was not properly facilitated. Ms. Kuligofski's impression was that Ms. Trinkaus was making excuses and refusing to take responsibility for her behavior.
Also during this period, Ms. Trinkaus had a confrontation with Pamela Lowe, the benefits administrator, over the use of the training room in which Ms. Trinkaus gave classes. Ms. Lowe and a few other employees were stuffing
envelopes with benefits information for all District employees during the open enrollment period. They used the training room because it allowed them the space to spread their materials. At the end of the day, they gathered their materials and put the envelopes into boxes for mailing the next morning. They stacked the boxes in the back of the room.
Ms. Trinkaus told Ms. Lowe that the boxes could not be left in the training room overnight because she had a training session scheduled for the next morning. Even though Ms. Lowe had no place else to store the materials, Ms. Trinkaus was adamant that they be removed from the training room.
Ms. Lowe sought Ms. Kuligofski's intercession.
Ms. Kuligofski secured Ms. Trinkaus' assent to leaving the boxes in the training room, provided they were gone no later than 8:00 a.m. the next day. Ms. Kuligofski was impressed by the fact that such a small issue between two employees could escalate into a conflict requiring resolution by the director of the department.
Ms. Kuligofski recalled at least two occasions in 1998 when she had to meet with Ms. Trinkaus and Mr. Johnson to counsel Ms. Trinkaus about her behavior. One such meeting on May 13, 1998, lasted more than three hours. Ms. Kuligofski told Ms. Trinkaus that she was a good trainer, but that fellow employees did not want to work with her and dismissed her
ideas because she was so confrontational. Ms. Kuligofski told Ms. Trinkaus that if she were evaluating Ms. Trinkaus at that moment, she would receive a "2" for Behavior.
The May 13, 1998, meeting had been scheduled well in advance. Prior to the meeting, Ms. Kuligofski went to
Ms. Trinkaus' office to discuss an unrelated matter, and
Ms. Trinkaus asked her what the May 13 meeting would concern. Ms. Kuligofski responded that it was a regularly scheduled meeting to discuss performance, to talk about what was going well and what was cause for concern. Ms. Trinkaus wanted to know what "concerns" Ms. Kuligofski could have about her performance. Ms. Kuligofski declined to discuss the matter, telling Ms. Trinkaus that such discussion was the purpose of the May 13 meeting. Ms. Trinkaus insisted, and Ms. Kuligofski gave a few examples of concerns with Ms. Trinkaus' behavior.
Ms. Trinkaus became extremely agitated, raising her voice and gesticulating. She told Ms. Kuligofski that her behavior was just fine, and demanded further examples of her poor behavior. Ms. Kuligofski replied that her behavior at that moment was an example. Ms. Trinkaus responded that
Ms. Kuligofski was not qualified for her job, that Ms. Kuligofski was too young to understand what Ms. Trinkaus was going through,2 and that Ms. Kuligofski did not know how to manage the training function. Ms. Trinkaus told Ms.
Kuligofski that when she was more mature and had more job
experience, she would better understand Ms. Trinkaus. At that point, Ms. Kuligofski cut off the discussion and said they would take it up at the scheduled May 13 meeting.
Ms. Trinkaus ultimately received an overall rating of "3" for 1998 in the performance appraisal signed by
Ms. Kuligofski and by Mr. Diggs, who took over as Ms. Trinkaus' direct supervisor after Mr. Johnson's resignation. While Ms. Trinkaus received a rating of "3" for behavior, the performance appraisal noted that her co-workers sometimes viewed Ms. Trinkaus as "defensive and argumentative," which inhibited her effectiveness. The appraisal recommended that she "continue to develop her ability to respond less reactively to confrontational or conflictive situations, and to provide input and criticism in a positive, constructive manner" to her co-workers.
Ms. Kuligofski appreciated the manner in which Ms. Trinkaus filled the void created by Mr. Johnson's
resignation in mid-1998, but she did not see any improvement in Ms. Trinkaus' behavior between May 1998 and the 1998 performance appraisal. Because she was still new to her position, Ms. Kuligofski deferred to Mr. Diggs' belief that Ms. Trinkaus' behavior had improved enough to be rated adequate. Ms. Kuligofski did not believe that Ms. Trinkaus ever took to heart any of the criticisms of her behavior and
believed Ms. Trinkaus should have been assigned a "2" rating for behavior in 1998.
In November 1998, Ms. Trinkaus was permanently assigned to the senior human resources specialist position vacated by Mr. Johnson. As part of the reorganization leading to the creation of a second human resources manager position, Ms. Kuligofski did away with Ms. Trinkaus' former position after Ms. Trinkaus assured her that she could perform the entire training function with the help of a student assistant.
D.J. Meadows, a student intern chosen by Ms. Trinkaus, was hired to perform support services.
In 2000 and after, Ms. Trinkaus used this administrative change to defend lapses in her performance. She contended that she was "doing the work of two people."
Ms. Kuligofski credibly testified that Ms. Trinkaus' workload did increase after Mr. Johnson resigned and before Ms. Meadows was hired, but that even in this period Ms. Trinkaus never performed "the work of two people." After Ms. Trinkaus began complaining in this fashion, Ms. Kuligofski investigated and found that trainers at other water management districts had greater responsibility than did Ms. Trinkaus, with no greater administrative support.
Also in November 1998, John Christ, an employee relations specialist, was promoted to the second human resources manager position and assigned to supervise Ms.
Trinkaus. However, from November 1998 until July 2000, difficulties in filling his prior position necessitated that Mr. Christ spend the bulk of his time performing the functions of his old job: dealing with employee discipline, performance management, performance reviews, investigating harassment charges, discrimination and retaliation allegations, and accommodations for handicapped employees. His direct supervision of Ms. Trinkaus was minimal during this period.
Ms. Trinkaus' 1999 performance appraisal was entirely positive. She received an overall rating of "3," and the commentary from both Mr. Christ and Ms. Kuligofski praised her exceptional efforts in advancing the training efforts of the Human Resources Department.
In 1998 and 1999, Ms. Trinkaus complained to the District’s General Services Division and Ms. Kuligofski about environmental conditions in Building Two, where she worked. She complained about dampness, temperature and mold. Ms. Trinkaus later complained to the District’s Risk Manager, Lucy Petruccelli, and the District’s Inspector General, Kurt Fritsch, about environmental conditions in Building Two.
In the summer of 1999, Ms. Trinkaus requested to move to another office in Building Two, because of discomfort related to the building’s temperature and humidity. She was moved accordingly.
On June 12, 2000, Ms. Trinkaus filed a First Report of Injury or Illness, seeking workers’ compensation medical assistance relating to respiratory and sinus symptoms allegedly caused by the building conditions. Three other Human Resources employees, John DeMas, Laurie Rice-Rickard, and D.J. Meadows, also filed First Reports of Injury or Illness on June 12, seeking workers’ compensation assistance relating to conditions in Building Two.
Medical treatment pursuant to the District’s workers’ compensation obligation was provided to Ms. Trinkaus by Dr. Joan Watkins. On June 16, 2000, Dr. Watkins recommended that the District change Ms. Trinkaus' work location. Ms. Trinkaus was relocated to the District’s Building Seven on June 21, 2000, along with the other Human Resources employees who had sought workers' compensation assistance.
Extensive evidence was offered regarding the District's response to the environmental complaints about Building Two. The District ultimately gutted and renovated the building at a cost of over $1 million. There was no credible evidence that the District took any retaliatory action against Ms. Trinkaus or any other employee for bringing the problem to light. Because Ms. Trinkaus ultimately withdrew her allegations that her dismissal was in retaliation
for her complaints and workers' compensation claims, detailed findings of fact as to this issue are unnecessary.
In July 2000, Steve Uebel was hired to fill
Mr. Christ's old job of employee relations specialist. Mr. Uebel had extensive experience in employee relations. It quickly became apparent that he could take over the position without need of further involvement by Mr. Christ, who informed Ms. Kuligofski that he was now ready to focus on his management responsibilities.
Within one month of assuming hands-on managerial duties, Mr. Christ became aware of performance and behavioral issues regarding Ms. Trinkaus, surrounding the creation and implementation of "Hiring Essentials," a training program for District employees.
As early as 1994, Mr. Diggs had identified a need to present training to employees on the District's personnel guidelines. Through the mid-nineties, Ms. Trinkaus and others presented training on interviewing skills for internal job applicants, and a separate training module on the District's recruitment and classification processes for supervisory personnel. In late 1997, management decided that these training modules should be combined into an overall training program to be called "Hiring Essentials."
Mr. Diggs believed this should have been an easy program to implement. The District had course materials from
a similar program at another water management district. Mr. Diggs liked that program and believed it could be quickly modified for the District's purposes. However, time passed and no finished product was forthcoming.
Part of the delay was attributable to employee turnover. The project had been assigned in 1998 to Ms. Trinkaus and Kim Lindeman, a senior recruitment specialist.
In June 1999, Ms. Lindeman changed jobs in the District, which necessitated suspending work on the Hiring Essentials program until her former position could be filled.
In August 1999, Laurie Rice-Rickard was hired to fill the senior recruitment specialist position. One of her first responsibilities was to complete the Hiring Essentials program. Ms. Kuligofski gave Ms. Rice-Rickard the responsibility for performing the actual training in a live setting. Ms. Trinkaus was given the task of completing the training materials, which by this time chiefly involved editing the compiled documents.
Ms. Kuligofski wanted the program ready for a pilot presentation some time between October 1999 and March 2000. However, delays in completing the program continually prevented the setting of a firm date for the pilot presentation. A date of August 11, 2000, was eventually established for presentation of the pilot to employees of the Human Resources Department.
At some point in the summer of 2000, Ms. Kuligofski became concerned about the status of the project because she had yet to see any pilot materials. She knew Ms. Rice-Rickard to be an experienced trainer capable of getting the program together quickly, and thus she did not understand the delay.
Ms. Kuligofski asked Mr. Diggs, who was Ms. Rice- Rickard's direct supervisor, about the status of the project. He replied that Ms. Rice-Rickard had complained to him in her weekly reports about Ms. Trinkaus' lack of progress on the materials for the presentation. Ms. Rice-Rickard had repeatedly asked Ms. Trinkaus for the materials. Ms. Trinkaus would tell her only that she was working on it and did not need any assistance. Ms. Rice-Rickard was worried that she would not have the materials in time to prepare for her presentation of the pilot on August 11.
In response to Ms. Kuligofski's inquiry and the complaints of Ms. Rice-Rickard, Mr. Diggs approached Mr. Christ, the supervisor of Ms. Trinkaus. Mr. Diggs asked Mr. Christ for assistance in getting Ms. Trinkaus to move forward with the project.
In early August 2000, Mr. Christ asked Ms. Trinkaus about the status of the materials and why the program was not moving forward. Ms. Trinkaus responded by attempting to shift the blame to Ms. Rice-Rickard, questioning her qualifications and commitment to the project, and revealing to Mr. Christ
that Ms. Rice-Rickard had put her home up for sale and intended to move to Panama City.
Ms. Trinkaus testified that it was common knowledge that Ms. Rice-Rickard's house was for sale, and denied that she was revealing confidences. However, Ms. Trinkaus admitted she did not know whether Ms. Rice-Rickard's plan to leave the District was also common knowledge. Mr. Christ plainly was unaware of it until Ms. Trinkaus told him. In any event,
Ms. Trinkaus' response was an inappropriate effort to deflect criticism from her own failure to complete her portion of the project. Ms. Rice-Rickard subsequently learned of Ms.
Trinkaus' actions, which further estranged the two co-workers.
On August 10, 2000, Mr. Diggs and Mr. Christ called a meeting with Ms. Trinkaus and Ms. Rice-Rickard to clear the air and attempt to get the employees to cease bickering and cooperate on the project. Mr. Diggs inquired as to the constant delays in the Hiring Essentials program, which he believed was 90 percent complete as early as October 1999. Ms. Trinkaus responded with excuses regarding the move from Building Two. Mr. Diggs found this unsatisfactory, because the move was a recent event and Ms. Trinkaus had supposedly been working on the program materials for many months.
At the meeting, Mr. Christ made it clear that
Ms. Trinkaus had been a divisive force in the Department and that such behavior had to stop. He stated that, in his opinion, Ms. Trinkaus rated a "1" for Behavior and an overall "2" as matters currently stood. Both Mr. Diggs and Mr. Christ stated that Ms. Trinkaus was wrong to reveal private information about Ms. Rice-Rickard to deflect responsibility for her own failure to complete the program materials.
Ms. Trinkaus perceived this meeting as a personal attack. Ms. Trinkaus described Mr. Christ as "hostile and aggressive," intent on trying to "intimidate and provoke" her. She testified that Mr. Christ appeared to undergo a "personality change" on August 10. She believed that he was trying to make her quit her job. Ms. Trinkaus believed that all of Mr. Christ's subsequent actions toward her were designed to find grounds to justify the "2" rating he had threatened to give her.
Mr. Diggs disagreed with Ms. Trinkaus' characterization of the meeting. The purpose of the meeting was to improve relationships and to make Ms. Trinkaus accept accountability for her duties. Mr. Christ displayed no hostility or aggressiveness. While there was some tension during the discussion of Ms. Trinkaus' failure to meet deadlines, Mr. Christ behaved firmly but professionally.
Every supervisor who worked with Ms. Trinkaus observed that she did not respond well to criticism. Her testimony and demeanor at the hearing reinforced the accuracy of these observations. Any negative critique of her work was perceived by Ms. Trinkaus as a personal attack, to which she would respond with hostility, questioning the qualifications or motives of the supervisor.
Ms. Trinkaus actively resented supervision. She complained that after the August 10 meeting, Mr. Christ "suddenly started paying a noticeably increased level of interest in every single aspect of what I was doing," as if that were not his job as her supervisor. Ms. Trinkaus could offer no motive for the sudden "personality change" in Mr. Christ, a change noted by no one other than Ms. Trinkaus. Mr. Diggs' testimony as to Mr. Christ's actions at the meeting is credited.
Ms. Trinkaus' testimony as to the August 10 meeting is unreliable except as an accurate portrayal of her subjective reaction to Mr. Christ's criticism. This reaction colored Ms. Trinkaus' view of every subsequent event leading to her dismissal. She became convinced that management of the Human Resources Department was conspiring to fabricate a case for firing her, despite abundant evidence that management was displaying great forbearance in its efforts to salvage her as a valuable employee, if she would only cease making excuses
and accept responsibility for her duties and her poor behavior.
The Hiring Essentials pilot was presented as scheduled on August 11, 2000. However, Ms. Trinkaus herself had to present the program because the materials were not completed in time for Ms. Rice-Rickard to prepare her own presentation.
At the hearing, Ms. Trinkaus offered excuses for her failure to produce the Hiring Essentials materials on time. She claimed that no one told her of the deadline, though it was finally set based on her own statement to Mr. Diggs that she could have the materials ready by August 1. She claimed that the Hiring Essentials program was "not the only thing on my plate" during the summer of 2000, though she could show no other work product for that period.
Ms. Trinkaus also attempted to minimize the disruption caused by her tardiness and poor behavior by contending, essentially, "all's well that ends well," i.e., the pilot went forward as scheduled. None of these excuses was persuasive.
The District's customary process for the drafting of employee performance appraisals was for an employee's immediate supervisor to draft the appraisal, then circulate the draft for review up the employee's chain of command, up to and including to the department director. For performance
appraisals with an overall rating "2" or lower, the manager was encouraged to provide the draft to the employee relations specialist for review.
Between September 27 and October 19, 2000, Mr.
Christ prepared four drafts of Ms. Trinkaus' 2000 performance appraisal. The drafts were circulated to and commented upon by Ms. Kuligofski, the department director. Because Mr.
Christ's overall rating of Ms. Trinkaus was "2," the third draft of the performance appraisal was given to Steve Uebel, the employee relations specialist, for his review and comment.
Ms. Kuligofski and Mr. Uebel made minor editorial changes to the draft document, but agreed with Mr. Christ's overall rating of "2." Mr. Christ delivered the performance appraisal (hereinafter referred to as the "Original Appraisal") to Ms. Trinkaus on October 23, 2000.
The Original Appraisal rated Ms. Trinkaus a "4" in the areas of Job Knowledge and Quality. It rated her a "2" in the areas of Behavior, Quantity, Dependability, and Communications.
Under the category of Behavior, Mr. Christ wrote:
Ms. Trinkaus has inconsistently met expectations in this rating category. In July 2000, Ms. Trinkaus was assigned to work with other staff within HRD to develop a "Hiring Essentials" training program.
Each staff member was assigned part of the project to complete. Ms. Trinkaus did not have her part ready for the scheduled "dry run" of the program, which interfered with
the ability of other staff to complete their portions, delaying implementation of the program. Subsequently, Ms. Trinkaus made a series of derogatory personal comments about a co-worker on the project. This resulted in a disruptive conflict that had to be resolved in a meeting with the other staffer, her manager, Ms. Trinkaus and myself on August 10, 2000. To her credit, Ms. Trinkaus admitted her actions in that meeting and apologized to the fellow staffer. I expect in the future Ms. Trinkaus will work positively and cooperatively with fellow staff members on joint projects, refrain from making divisive personal attacks on others and meet deadlines set for completion of projects, especially when others are relying on her to produce integral pieces of a cooperative assignment.
In another instance, I was advised by another staff member [D.J. Meadows, Ms. Trinkaus' student assistant] who reported to me that Ms. Trinkaus had quizzed her, to the point she felt intimidated and badgered by Ms. Trinkaus, because the staffer had talked to me about various matters, at my request. Ms. Trinkaus told the staffer she was "not being loyal to the training department" by speaking with me on things not discussed first with Ms. Trinkaus. I had to reassure the other staffer to let her know her loyalty to the Human Resources Department is expected, that training is not a stand-along [sic] department but rather one function within the Human Resources Department and that the staffer should always feels free to come speak to me, her supervisor, at any time about any subject. I expect Ms. Trinkaus to be part of the Human Resources team and to recognize that the training function, while important, is part of the larger whole. I want to create an environment which at all times allows my staff to speak freely to me without fear of reprisal from others. I therefore expect Ms. Trinkaus (and all staff) to refrain from questioning and
criticizing other staff when they speak to management about training issues or other matters of District or personal concern.
On September 28, 2000, Ms. Trinkaus attended a meeting with me and an attorney from the Legal Department, to discuss development and delivery of a "Professional Image" workshop for District staff. During that discussion, the attorney raised some specific and appropriate legal issues for us to consider when preparing the workshop. Ms. Trinkaus became agitated when it was indicated there may be legal constraints on development of program content and stated she didn't "buy" the legal concerns. She further stated (without first speaking to the trainer) the outside trainer she had in mind may not want to modify the training to reflect the District's legal concerns and that we may want to find someone else to do the training. By her behavior, Ms.
Trinkaus clearly indicated she did not like
the direction she was receiving about legal elements [that] management and the Legal Department believe should be considered when developing the workshop. When working with Ms. Trinkaus, I have found this to be a common thread in her behavior-- when a project comes up she disagrees with or does not want to do, she becomes argumentative and exhibits significant frustration that detracts from the productive and timely completion of the project. I expect Ms.
Trinkaus to work at eliminating these
behaviors because they detract from her overall effectiveness and interfere with completion of objectives set forth by management. It is not that I want Ms.
Trinkaus to refrain from expressing her opinions, because she frequently offers insightful ideas that are valuable to me in determining appropriate training direction for the District. Such ideas help to shape each program and have proven to achieve positive results. However, in the future I would like Ms. Trinkaus to focus always on finding ways to design and deliver training programs to meet all of the needs of the
District, rather than focusing on all the things that would prevent a program from occurring simply because Ms. Trinkaus disagrees with management direction.
Under the category of Quantity, Mr. Christ wrote:
Ms. Trinkaus has inconsistently met expectations in this rating category. In the months of May, June, July and August, 2000, Ms. Trinkaus delivered only one, one- day class and coordinated two days of outside training. When asked why other training programs were not delivered during these months, Ms. Trinkaus stated she had to move to another building during that time and also that it was "year-end closeout" when "training is not typically done." The move Ms. Trinkaus referred to was understandably disruptive for a number of days. However, Ms. Trinkaus was not able to explain the concept of "year-end closeout," why training was put essentially on hold for 4 months or why it took prompting from me to move training initiatives forward again in September 2000. September 2000 is budget closeout for the District's fiscal year, but Ms.
Trinkaus plays little or no part in budget
activities other than coordinating payment for training programs and recommending training-related resources for purchase; all budget planning, reporting and forms are handled through Department Administration.
Ms. Trinkaus also stated she thought she was out of training dollars in order to schedule outside training. However, she did not approach me to verify this and, in fact, significant dollars were available during the summer months. Ms. Trinkaus asserted the summer months are "down time" traditionally in the training section.
However, upon checking past training records I found numerous training programs that occurred during the summer months every year for the past several years. In the future I expect Ms. Trinkaus to plan
training programs so they are made available throughout the year. She should identify at or before the beginning of each fiscal year the training priorities and planned programs anticipated for each month and add programs as needed as each year progresses. Questions about budget availability should be directed to me so that I can make priority decisions and determine whether a particular program is feasible.
Under the category of Dependability, Mr. Christ wrote:
Ms. Trinkaus has inconsistently met expectations in this rating category. When requested in August 2000 to conduct a one- on-one training session with an employee in Tampa who needed time management assistance, Ms. Trinkaus told the employee's manager she would not be able to provide such training until "late fall." She further told the manager she was busy getting ready to go on vacation at the time the request was made. Ms. Trinkaus provided a list of dates and times the employee could attend an external program, at a much higher cost to the District than if Ms. Trinkaus conducted the program (the cost being staff time, only). The District paid for Ms. Trinkaus to become certified in Time Management instruction through Franklin-Covey, in response to her specific request to become certified and her assertion that it would be much more cost- effective to conduct the training in-house. Because of this, she is expected to be available to provide the training to staff as needs are identified. I finally directed Ms. Trinkaus to conduct the program for the employee, which she did.
The employee's manager was very thankful
for Ms. Trinkaus taking the time to provide the training. This is the type of hands- on, cooperative response that is critical to allow HRD to maintain positive, cooperative relationships with other
departments and that I expect from Ms. Trinkaus.
In another instance, Ms. Trinkaus coordinated an outside instructor from St. Leo University to come to the District on September 13, 2000, to provide computer training for staff. Ms. Trinkaus arranged to meet the instructor prior to the training class, to orient him and get him situated. Ms. Trinkaus called in sick the day of the training and spoke to me, but never told me the instructor was coming or made arrangements for another staff member to meet him. I subsequently received a call from another staff member saying the instructor had arrived, had been wandering around the District and did not know where he was supposed to be. I called Ms.
Trinkaus at home and she stated she had
"forgotten all about" the training and hadn't remembered to look in her Franklin planner to remember what she had scheduled for that day, even though she had spoken to the instructor just the day before to finalize arrangements. Ms. Trinkaus trains staff on time management and use of the Franklin planner. Further, she should know when she is out unexpectedly that someone should be briefed about her commitments for the day, so they can be covered or rescheduled. This situation was embarrassing to me and did not set a professional image for the instructor about the way the District operates.
Ms. Trinkaus is relied upon to provide quality training programs and has been very successful in doing so during portions of this year. However, in working with other staff to develop the "Hiring Essentials" training program she told two other employees not to worry about the "dry-run" of the program because the District does not expect a high quality product. Ms.
Trinkaus said this in response to the other staff members asking about Ms. Trinkaus' portion of the project, which Ms. Trinkaus had not completed on time (and resulted in
a delay of the dry-run). The staffer responsible for delivering the program said she was surprised by the comment because she always tried to provide the highest quality product. I assured her we expected her and all staff to do so. Ms. Trinkaus has always made an effort to provide high quality training; it is inappropriate for her to tell anyone the District does not expect the highest quality possible.
Under the category of Communications, Mr. Christ wrote:
Ms. Trinkaus has inconsistently met expectations in this rating category. As mentioned in the Behavior category,
Ms. Trinkaus has had some inappropriate interactions with co-workers during this past year. Also, she repeatedly brings items to management at the last minute for approval (tuition reimbursement requests, requests to order training materials, purchase orders, etc.). Prior to going on vacation in late August, Ms. Trinkaus left a list of last minute, written "to do" items for the department's Administrative Section to handle, without discussing these with the other staff or giving them prior notice the assignments were coming. I expect Ms. Trinkaus at all times to communicate positively and professionally with co-workers. I expect her to process paperwork and requests related to the training function in a timely manner, showing consideration for the time constraints of other staff and giving them ample lead time to complete their portions of [joint] projects, process her requests and purchase orders and balance training needs with the needs of others.
Finally, Mr. Christ included the following "Overall Comments":
I met with Ms. Trinkaus on numerous occasions over the past several months to
discuss these and various other issues with her. On August 10, 2000, I told her she could expect a Rating 2 Performance Appraisal this year as a result of conflicts she has had with co-workers.
Since that time, we have also discussed the other significant issues reflected in this appraisal. Based upon our discussions, I have seen recent signs Ms. Trinkaus is getting back on track with my expectations and her formerly high levels of performance. With cooperation and input from Ms. Trinkaus, I will prepare a Corrective Action Plan to help ensure this occurs. Additionally, Ms. Trinkaus will receive periodic, out-of-cycle performance appraisals throughout the next rating year to provide guidance and to help her meet expectations in the future.
Mr. Christ provided a draft Corrective Action Plan to Ms. Trinkaus on October 26, 2000. The usual practice at the District called for the employee to review the draft Corrective Action Plan and offer his or her input or ask relevant questions, so that the employee and manager would be in agreement as to the plan's elements. The employee's manager would then finalize the plan and put it into effect.
In this case, Ms. Trinkaus' Corrective Action Plan did not take effect because she elected to appeal the appraisal. On October 26, 2000, Ms. Trinkaus requested that Ms. Kuligofski conduct a review of the issues discussed in the appraisal. Ms. Trinkaus alleged that Mr. Christ's descriptions were "misleading and contain numerous distortions of facts," and that the overall rating of "2" was conjured by Mr. Christ to justify his own inappropriate behavior in the
August 10, 2000, meeting. She alleged that "the appraisal was designed to be inflammatory and degrading and specifically to cause an adverse economic impact on me with the end result being that I might resign from my position."
On November 13, 2000, Ms. Trinkaus met with
Ms. Kuligofski to outline her dispute with the facts as set forth in the Original Appraisal. On the same date, Ms.
Trinkaus presented Ms. Kuligofski with a written request for five specific outcomes she expected from Ms. Kuligofski's review: that her reporting structure be altered so that she could report to Mr. Diggs or Ms. Kuligofski; that the factual record be corrected; that Mr. Christ be required to retract his appraisal; that "appropriate documentation" be placed in Mr. Christ's permanent record; and that the Corrective Action Plan be withdrawn as unnecessary.
Ms. Kuligofski conducted an extensive review of the Original Appraisal. Ms. Kuligofski conducted multiple interviews with Ms. Trinkaus and Mr. Christ. She also interviewed Mr. Diggs; Amrit Lee, another trainer involved in the Hiring Essentials dispute; District lawyer Lori Tetreault; and District employees Carolyn Joslin, Kim Cash, and John DeMas. Ms. Kuligofski made extensive notes of these interviews, which she then allowed the interviewees to review for accuracy. On January 5, 2001, Ms. Kuligofski produced a
29-page review of the Original Appraisal and Ms. Trinkaus' objections thereto.
Ms. Kuligofski determined that several revisions should be made to details of the Original Appraisal. Under the category of Behavior, she determined that the second and third paragraphs of Mr. Christ's narrative, quoted above, should be stricken. As to the second paragraph, Ms. Kuligofski's interviews and document review led her to conclude that D.J. Meadows was not a reliable witness against Ms. Trinkaus and that her allegations regarding Ms. Trinkaus' "badgering and intimidation" should be disregarded.
As to the third paragraph, Ms. Kuligofski concluded that it was accurate and reflected a legitimate managerial concern about Ms. Trinkaus' behavior when she disagreed with a management decision. However, Ms. Kuligofski's investigation disclosed that Ms. Trinkaus was not specifically counseled about the incident at the time it occurred and therefore the paragraph should be stricken from her appraisal as "a technical matter."
As to the first paragraph of the Behavior category, Ms. Kuligofski concluded that, while Ms. Rice-Rickard's contribution to the conflict was greater than Mr. Christ's narrative indicated, Ms. Trinkaus handled the conflict in an unprofessional and highly disruptive manner. Ms. Kuligofski concluded that Ms. Trinkaus should receive a rating of "2" in
the category of Behavior. She recommended transferring the references to delays in developing program materials to the Dependability category, because they had more to do with following through on work assignments than behavior.
In the category of Quantity, Ms. Kuligofski concluded that Ms. Trinkaus' rating should be changed from a "2" to a "3," largely because she believed the concerns raised by Mr. Christ's narrative were more properly questions of Dependability than of Quantity. Ms. Kuligofski found that the facts set forth in Mr. Christ's narrative were essentially accurate: between May 1, 2000, and August 10, 2000, Ms. Trinkaus delivered only one, one-day class and coordinated five days of outside training. Ms. Kuligofski found there was some disruption caused by Ms. Trinkaus' move to another building, though this should have lasted no more than a week or two. Ms. Kuligofski also found that the overall quantity of training programs delivered over the course of the entire year was comparable to that delivered in prior years. Ms. Kuligofski cautioned Ms. Trinkaus that future reduction in training for periods of more than three months would negatively affect her rating in the Quantity category.
In the category of Dependability, Ms. Kuligofski
found that the first paragraph of Mr. Christ's narrative should be stricken. Her interviews indicated that it was Mr. Christ, not Ms. Trinkaus, who first suggested a one-on-one
training session with the Tampa employee, and that Ms. Trinkaus was never made aware of how critical it was that this particular employee receive the training. Ms. Kuligofski found that Ms. Trinkaus was not resistant to administering the training. Ms. Kuligofski did believe that there was some resistance on Ms. Trinkaus' part as to who would control the timing of the training, and that Ms. Trinkaus should be made aware that at times a supervisor will direct her to conduct training on an "urgent" basis without necessarily explaining the need for urgency to her satisfaction. Ms. Kuligofski concluded that Ms. Trinkaus was not counseled about this incident as a performance issue, and, therefore, should not be criticized for it in her performance appraisal.
As to the second paragraph, which concerned the instructor from St. Leo University, Ms. Kuligofski found that the incident occurred as described by Mr. Christ. However, Ms. Kuligofski believed that this was an issue of Communication, keeping other staff advised of her schedule and commitments so that things do not "fall through the cracks" and damage the District's image with outside trainers. Thus, Ms. Kuligofski recommended moving this paragraph from the Dependability to the Communications category.
Ms. Kuligofski recommended striking the third paragraph of Mr. Christ's narrative in the Dependability category. She found that Ms. Trinkaus never said that the
District "does not expect a high quality product." Rather, it was Ms. Trinkaus' understanding that the dry-run of the Hiring Essentials program would be for HRD staff only, and, therefore, it was not necessary to have the program materials in final form.
Ms. Kuligofski determined that Ms. Trinkaus' rating in the Dependability category should remain a "2" because of the issues regarding delays in development of the Hiring Essentials program, which she shifted from the Quantity to the Dependability category. Ms. Trinkaus had known for a long time that she was responsible for the training materials and that she was expected to work closely with Ms. Rice-Rickard to complete the task. On more than one occasion, Ms. Trinkaus had assured Ms. Kuligofski that she had the materials and that putting them together would not be a problem.
Finally, as to the Communications category,
Ms. Kuligofski found Mr. Christ's narrative to be accurate and supported by the facts. Ms. Kuligofski's review painstakingly documented the accuracy of Mr. Christ's statement that
Ms. Trinkaus "repeatedly brings items to management at the last minute for approval," as follows in pertinent part:
. . . Interviews with [administrative supervisor] Carolyn Joslin (and supporting documents provided) indicated that
Ms. Trinkaus often waits until just a few days or a week before materials are needed before submitting purchase requests, which causes administrative staff to have to drop
other assignments to get Ms. Trinkaus' orders processed. Because of this, there are also items that could be ordered with a simple check request that have to be ordered through Purchase Order (a more
time- and staff-intensive process), because there are deadlines for submitting check requests that cannot be met. On at least one occasion, Ms. Joslin recalled materials were received (from Franklin-Covey) before proper paperwork was even processed, which deviates from District procurement procedures.
My interview with Mr. Diggs confirmed that this has been on ongoing concern with
Ms. Trinkaus, about which she has been counseled in the past (during times when Mr. Diggs was the Manager over the training section and back as far as the former Human Resources Director, Zolda Favot).
Also, Ms. Joslin has attempted to work with Ms. Trinkaus to resolve this issue on more than one occasion in this past year. As the Department's Administrative Supervisor, Ms. Joslin has the authority to set, and to expect staff to meet, reasonable time frames for submittal and processing of requests and documentation. She has the same level of authority over matters of Department administration that Mr. Diggs and Mr. Christ have over their functional areas. It should not be necessary for Ms. Joslin to repeatedly ask any staff member for documentation to be provided in a more timely fashion. . . .
With respect to providing last-minute instructions to staff, I find this portion of the appraisal to be accurate. Ms.
Trinkaus left a series of tasks for DJ Meadows, an Administrative Section staff member, late on the evening before Ms.
Trinkaus was scheduled to go on vacation. This included, among other things, scheduling and announcing training that was to occur shortly after Ms. Trinkaus returned from leave.
Ms. Trinkaus did not discuss the assignments with affected staff prior to sending an e-mail at 7:08 p.m. Because she was on leave the next day, there was no way to clarify the assignments. Ms. Meadows was also going on vacation and was scheduled to be absent during most of the time Ms. Trinkaus was also absent, leaving her only one day to complete the assignments. In addition, other staff were on vacation or otherwise absent during that time (around Labor Day). This left
Ms. Joslin to do many of the tasks on the
list. Some of the tasks did not get done, because insufficient instructions were left, because there were other priorities, or because no one was available who knew how to perform the tasks. As a result, training schedules were not posted and classes had to be canceled or rescheduled when Ms. Trinkaus returned from
vacation. . . .
As noted above, Ms. Kuligofski transferred the item relating to the instructor from St. Leo University from the Dependability to the Communications section. She concluded that Ms. Trinkaus' rating under Communications should remain a "2."
Ms. Kuligofski also concluded that Ms. Trinkaus' overall rating should remain a "2." She conceded that her changes to the Original Appraisal could have justified raising the overall rating to a "3." However, she believed that
Ms. Trinkaus needed to be sent a message that her behavior and work habits needed to change.
As to the specific outcomes requested by Ms.
Trinkaus, Ms. Kuligofski denied the request that the reporting
structure be altered. She found that, during the appeal period, Ms. Trinkaus and Mr. Christ had maintained a cordial and productive working relationship, and that Mr. Christ had reported favorably on Ms. Trinkaus' performance thus far in the new year. Ms. Kuligofski remained convinced that Ms.
Trinkaus and Mr. Christ could work together "professionally and effectively."
Ms. Kuligofski believed that her work in reviewing the record fully addressed Ms. Trinkaus' request that the record be corrected. Ms. Kuligofski did not believe it necessary to require Mr. Christ to "retract" his performance appraisal, as he had expressed a willingness to abide by Ms. Kuligofski's decisions and to sign the performance appraisal as amended by Ms. Kuligofski. Ms. Kuligofski also did not believe it necessary to place any documentation in Mr. Christ's record as to his handling of Ms. Trinkaus' Original Appraisal.
Ms. Kuligofski declined to withdraw the Corrective Action Plan, choosing instead to encourage Ms. Trinkaus to provide input and work with Mr. Christ in addressing her performance concerns. Again, Ms. Kuligofski noted that
Mr. Christ reported that Ms. Trinkaus' performance in the new year was meeting expectations, and that Ms. Trinkaus would periodically receive out-of-cycle evaluations to advise her of her progress.
Finally, Ms. Kuligofski wrote:
Ms. Trinkaus has already indicated that my review will be unacceptable to her if it does not "substantially change" her 2000 Annual Performance Appraisal. It is therefore possible the changes I have made will not result in a resolution Ms.
Trinkaus will deem satisfactory.
If that is the case, I encourage Ms. Trinkaus to use the mechanisms the District makes available to all employees to seek further review through the chain of command, starting with my supervisor, Gene Schiller, Deputy Executive Director, Management Services. As Mr. Christ will do with my decisions, I will abide by any determinations made by Mr. Schiller or others in the chain of command.
Ms. Kuligofski made every effort to be fair to
Ms. Trinkaus. She removed items from the appraisal that she believed were legitimate criticisms, simply to give Ms.
Trinkaus the benefit of all doubts. Ms. Kuligofski nonetheless concluded that Ms. Trinkaus merited an overall rating of "2." Ms. Trinkaus was in a professional position that she had held for over eight years. If she did not know that there were certain basic things required of her position, then she had a performance issue. A senior professional should not have to be told to do her job, and should not allow four months to elapse with no work product to show for it.
Ms. Trinkaus received the Revised Appraisal on February 19, 2001. The Original Appraisal was removed from her official personnel file and replaced by the Revised
Appraisal. On February 23, 2001, she returned the signed appraisal with the following note:
This version is as unacceptable as the original dated Oct. 2000. The facts were presented to [Ms. Kuligofski and Mr.
Christ] on 11/13/00 but continue to be distorted and/or ignored in this document. I [received] nothing but positive feedback from [Mr. Christ] until 8/10/00. May-Aug. time frame coincides w/my filing a w.c. claim & being moved out of a sick bldg. w/3 others.
Thus, Ms. Trinkaus continued to pursue the notion that her performance appraisal had nothing to do with her own poor performance and bad behavior. However, she now claimed for the first time that the appraisal was in retaliation for her filing a workers' compensation claim and complaining about a "sick" building. As noted above, Ms. Trinkaus provided no evidence of any such retaliation. She and her fellow workers were provided with proper health care on repeated occasions. The District ultimately gutted and completely renovated Building Two, and took no retaliatory action against the complaining employees. The evidence indicated that
Ms. Kuligofski conscientiously reviewed the Original Appraisal and gave the benefit of every doubt to Ms. Trinkaus in revising it.
On March 1, 2001, Ms. Trinkaus hand-delivered a written request for review to Kurt Fritsch, the District's Inspector General. She requested that Mr. Fritsch conduct an
investigation of the District's handling of the environmental issues surrounding Building Two and of "management response to my (and others) filing a WC claim," which she characterized as "hostile work environments, negative performance appraisal(s), [and] adverse financial impact to me."
Mr. Fritsch declined to investigate Ms. Trinkaus' claims as to Building Two because the information she submitted did not, in his opinion, meet the criteria for a claim under the Whistle-blower's Act, Section 112.3189, Florida Statutes. However, he did perform an inquiry under his general investigative authority into Ms. Trinkaus' claims regarding management's response to her filing a workers' compensation claim.
Mr. Fritsch met with Ms. Trinkaus for several hours on at least two occasions and reviewed 175 pages of supporting documentation she provided. He essentially conducted an audit of Ms. Kuligofski's earlier investigation, reviewing her complete file and re-interviewing the key personnel involved in Ms. Trinkaus' performance appraisal, and found that
Ms. Kuligofski's investigation was fair, accurate, and supported her conclusions. Mr. Fritsch also provided Ms. Trinkaus at least four opportunities to submit rebuttal information, and he interviewed witnesses at her suggestion. Ms. Trinkaus attempted to provide him with information about
events that occurred subsequent to the performance appraisal, which he rejected as outside the scope of his review.
Mr. Fritsch instructed Ms. Kuligofski not to engage in any corrective action or performance management of Ms. Trinkaus until he had completed his investigation. He advised Ms. Kuligofski that she could discuss work assignments with Ms. Trinkaus, but could not counsel her about matters related to the performance appraisal.
On May 3, 2001, Mr. Fritsch issued a memorandum to Ms. Trinkaus containing the following conclusions:
Based on the evidence reviewed, the Office of Inspector General does not believe that the performance appraisal, as revised by the Human Resources Director, is materially inaccurate or retaliatory in nature.
Consequently, this office cannot recommend changing the revised appraisal or further investigating this matter. With the issuance of this memorandum, our inquiry work will be complete. . . .
Please remember that prior to fiscal year 2000, you received very positive reviews. Accordingly, I encourage you to meet with your supervisors immediately so that you can develop an appropriate recovery plan and an out-of-cycle review can be completed. Your active participation in a recovery plan can lead to a successful review which will remedy, in part, your economic loss. . . .
Mr. Fritsch testified that the one thing that "jumped out" at him to justify Ms. Trinkaus' "2" rating was her lack of work product from May through July 2000. He provided Ms. Trinkaus multiple opportunities to explain what
she was doing during that time but, despite her efforts, "there just seems to be a hole there for those three months." Mr. Fritsch stated that it would be alarming to him as a supervisor to have an employee with no work product to show for a quarter of the year.
As indicated by the last paragraph of Mr. Fritsch's conclusions, Ms. Trinkaus' managers were somewhat hamstrung during the appeals of her 2000 performance appraisal. They could not commence work on her Corrective Action Plan or provide her with the feedback of an out-of-cycle review until her appeals were finally resolved and her 2000 performance appraisal made final. An out-of-cycle appraisal was completed but could not be given to Ms. Trinkaus while her appeals were pending.
Ms. Trinkaus was doing things on the job that would have been the subject of counseling but for the stay imposed by her appeals. She continued to miss deadlines and fail to follow through on administrative details. Ms. Kuligofski found the situation awkward and potentially explosive. Rather than discussing each relatively minor issue with Ms. Trinkaus as it arose, management was forced to allow the list of issues to grow. Ms. Kuligofski feared that, once management was cleared to discuss these issues, Ms. Trinkaus would feel that she was being "shotgunned" with a litany of performance issues.
One of these performance issues involved Ms.
Trinkaus' responsibility to regularly schedule "Beyond Sexual Harassment" training sessions for new employees. She had been instructed to automatically schedule a session at any time the number of new employees without this training reached 20 to
Ms. Trinkaus had argued against this instruction, but appeared to accept it. However, in the spring of 2001, Ms. Kuligofski noted that a session had not been scheduled since October 2000, and the number of new employees in need of the training was becoming critical. Ms. Kuligofski had Mr. Christ ask Ms. Trinkaus why the training had not been scheduled. Ms. Trinkaus claimed not to recall the original instruction and Ms. Kuligofski had to give it again.
Another incident that the appeals prevented
Ms. Kuligofski from discussing with Ms. Trinkaus involved a proposed off-site training session. In January 2001,
Ms. Trinkaus and Ms. Kuligofski met with Fritz Musselman, director of the District's Land Resources department, about scheduling a training session for his department on March 22, 2001. Mr. Musselman made it clear that he would like to have the session away from the District headquarters, to give his staff the opportunity to dress down and get the training without interruption. Ms. Trinkaus suggested Sylvan Grove, a site near the District headquarters. She had not seen Sylvan
Grove, but had heard positive reports about it. Mr. Musselman liked the idea.
Despite having nearly two months notice, Ms.
Trinkaus waited until March 21, the day before the training session, to actually drive across the street to Sylvan Grove and inspect the facilities. She found that they were entirely inappropriate. She then commenced scrambling around Hernando County in search of a suitable location. She found nothing.
Ms. Trinkaus returned to the District and informed Mr. Musselman that the training session would have to be held at District headquarters after all. Mr. Musselman did not react strongly in Ms. Trinkaus' presence, but he later called Ms. Kuligofski and Mr. Christ and "read John and me the riot act," in Ms. Kuligofski's description. He was upset not just because the off-site training had been cancelled, but because he did not learn of the change in plans until the afternoon of the day before the training. His staff had already been told the training would be held at Sylvan Grove. Mr. Musselman's staff mostly worked in the field. Relaying word of the change to them on short notice was logistically very difficult. Mr. Musselman and his secretary had to spend a great deal of time on the telephone trying to track them down.
A third incident that could not be discussed with Ms. Trinkaus at the time it occurred involved her preparation of revisions to a "Welcome to the District" brochure for new
employees. Eugene Schiller, deputy executive director of the Division of Management Services, had discussed with Ms.
Trinkaus the need to update the brochure, and Ms. Trinkaus had assured him she would complete the update by January 1, 2001. When the appointed date passed, Mr. Schiller called Ms.
Kuligofski and asked about its status. Ms. Trinkaus stated that she did not consider January 1 to be a "hard and fast" deadline. She later told Ms. Kuligofski that henceforth she would not provide dates for the anticipated completion of her projects, if they were going to be considered "deadlines."
On or about July 5, 2001, Ms. Trinkaus reiterated to Ms. Kuligofski her request that Mr. Christ be removed as her supervisor. This time she claimed to fear for her physical safety in Mr. Christ's presence, based on an incident she had witnessed some years before in which Mr. Christ lost his temper and shouted at some District employees.
Ms. Trinkaus did not accept the conclusions in
Mr. Fritsch's report. On July 25, 2001, she elected to pursue a third appeal of her 2000 performance appraisal, this time with Mr. Schiller, who represented the next step up the chain of command. On August 7, 2001, Mr. Schiller appointed Steve Uebel, the employee relations specialist, to review the existing record and consider new information developed during his investigation.
Mr. Schiller also decided that, at least until the allegations could be sorted out, Ms. Trinkaus should report directly to Ms. Kuligofski.
A conflict soon ensued over Ms. Kuligofski's decision that Ms. Trinkaus would no longer control the scheduling of the training room once HRD moved back into the renovated Building Two. Ms. Kuligofski had reviewed statistics showing that, on average, one training session per week was held in the room. The District was chronically short of meeting space, and the training room was large and suitable for meetings. Because the room was used more often for non- training than training purposes, Ms. Kuligofski decided that administrative staff, not training staff, should perform the scheduling function for the room.
Ms. Trinkaus argued at length with Ms. Kuligofski over her decision, offering many reasons why it would not work. Ultimately, Ms. Trinkaus agreed to "try it" for a short time and "see if it worked." Ms. Trinkaus in fact had no choice in the matter once Ms. Kuligofski made the decision. Ms. Kuligofski elected not to make an issue of this implicit insubordination and instead be satisfied with Ms. Trinkaus' acquiescence.
Another conflict arose over an outside trainer named Carol Price, who over the years had conducted numerous training sessions arranged by Ms. Trinkaus. At one such
session, Ms. Kuligofski obtained one of Ms. Price's brochures. She saw some things that she liked and called Ms. Price to discuss the possibility of meeting with her to design a custom training program for the Human Resources department. Ms.
Price agreed, and they made an appointment for Ms. Price to meet with Ms. Kuligofski and her management team.
When she learned of this meeting, Ms. Trinkaus told Ms. Kuligofski that her actions were highly irregular.
Ms. Trinkaus said that never in her nine years at the District had management met with or talked to an outside trainer without Ms. Trinkaus being present. Ms. Kuligofski chose not to argue about the issue, simply telling Ms. Trinkaus that the nature of the expected discussions with Ms. Price made it inappropriate for anyone other than management to be present.
Meanwhile, Mr. Uebel conducted his investigation and submitted to Mr. Schiller a 13-page memorandum on October 3, 2001. Mr. Uebel made the following findings and recommendations to Mr. Schiller:
Performance Appraisal issues
Behavior: The rating of "2" should be upheld. Although only one event is cited, it was a serious one. Further, Ms.
Trinkaus had been previously counseled regarding her behavior toward other HRD staff. Given her years of experience as a senior professional in the training and staff development functions, she should have recognized the problem that might result from telling her manager information about a colleague which had been shared
with her in confidence. If she was, as reported, concerned about the effect on her appraisal of a delay in the "dry run" of the Hiring Essentials program, and if she believed that another staff member's personal situation was likely to cause or contribute to the delay she feared, she should have employed her creativity along with her negotiating, problem solving and conflict resolution skills to the situation in order to achieve an outcome satisfactory to all without compromising her co-worker.
Dependability: The rating of "2" should be upheld. There are two issues in the Dependability performance objective: the delay in the Hiring Essentials program "dry run" and the lack of significant work activity during the May-August 2000 time frame. I recommend that references in this section of the appraisal to the delay in the Hiring Essentials "dry run" be stricken. The record is extensive regarding the timing of the program and there is certainly evidence in the record that management wanted and expected the program to be "rolled out" in the first half of 2000. It is my opinion, however, that other staff contributed to the delay. I am also influenced by the fact that on June 15, 2000 the date for the "dry run" was set for August 11 and apparently not challenged by management. Further, it appears that Mr. Diggs was aware of the delay for some time through regular reports from his staff, and that he failed to inform Mr. Christ or to take other actions to ameliorate the situation.
The references to a lack of significant work activity in the May through August time frame should remain in the appraisal. As a senior professional, responsible for the training and staff development function at the District, Ms. Trinkaus is expected to devote a significant portion of her time to needs assessment, program design and development, product evaluation, coordination and consultation with district
departments, and procurement of training and related services. These responsibilities account for sixty-five percent of the illustrative duties and responsibilities in her position description. Many of these are long-term in nature and require the incumbent to be a self-starter and to possess the personal discipline and time management skills to follow through. As with most senior professional positions at the District, Ms. Trinkaus’ position description states, with respect to the amount and type of supervision received, "Employee works independently with occasional direction from the Human Resources Manager or Director." The risk in a position with such responsibilities is that extended periods of time can pass with no outcomes which are readily visible to others, unless someone (the manager) makes regular and specific inquiries or demands regular reports of progress. Ms. Trinkaus is an experienced individual who has demonstrated in the past her ability to accomplish these responsibilities with a minimum of direction; in fact, she has a stated preference against being "micro-managed." Had Ms. Trinkaus devoted substantial efforts in this time frame to the development of the Hiring Essentials program, it is conceivable that she could have negated this criticism and avoided the confrontation with another staff member which resulted in three other adverse references in her appraisal.
Communications: The rating of "2" should be upheld. There are four specific references in this section of the appraisal. The first regards communications with co-workers and cites the confrontation with Ms. Rickard as a specific example. As noted previously, Ms. Trinkaus has been counseled about her manner of dealing with co-workers. This is an area where she needs to improve. Also, as noted above, inappropriate communications of an interpersonal nature
are reflective of, and will result in, concerns with behavior. This comment should remain in the appraisal.
The second issue raised in this section deals with the outside instructor who came to the Brooksville office, expecting to be met by Ms. Trinkaus who called in sick that day and failed to remember or notify anyone of the instructor’s impending arrival.
While this event clearly occurred as described, I believe it was an aberration caused by her illness. Ms. Trinkaus has demonstrated and been commended for excellent relationships with external customers and service providers. Since there appears to have been just the one "slip" and because her critical behavior and communications issues are with her management and HRD co-workers, I recommend that the references to the St. Leo instructor be stricken.
The third and fourth references in this section are, in my view, both descriptive of and result from, a single etiology, so I will address them together. Ms. Trinkaus is cited in these references for: leaving a lengthy to-do list for a support employee just before going on vacation and for frequently bringing requests for administrative support to staff at the last minute. Ms. Trinkaus does leave many administrative tasks for the last minute and has missed deadlines established to improve workflow and planning within the Human Resources department. This places an unfair burden on support staff within the department and on other District support operations. This tendency can lead to mistakes, communication breakdowns, unnecessary expenses, and interpersonal friction. The last two references in this section should remain.
Overall Rating: The overall rating of "2" should be upheld. As noted above, an overall rating of "3" means the employee has consistently met or exceeded
performance objectives critical to the position (my emphasis). With professional employees at the District, the performance objectives overlap considerably. If an employee receives even a single "2" in what is deemed by his/her management to be critical to the position, an overall "2" can be awarded. The highest rating of "4" in one or more performance objectives is not averaged with the "2"s to produce a "3."
Ms. Trinkaus has asserted she was never given adverse feedback until after she filed a Workers Compensation claim. She also says all of the feedback she received before the August 10 meeting was positive. As noted above, her position is a senior- level one, with many responsibilities the accomplishment of which can stretch over months with no visible outcomes in the interim. My experience with Mr. Christ, as with many managers at the District, is that they address performance issues when they become aware of them, even if the event occurred at some time in the past. How the issues are addressed when they occurred several weeks or months earlier usually depends on the seriousness of the issue.
For example, inappropriate behavior toward
a co-worker, customer, or member of the public might result in discipline if dealt with immediately after the event. With the passage of time in which there are no similar incidents, the same event might result in an adverse rating or ratings on the annual performance appraisal.
It is also important to note that Mr. Christ, in addition to his manager duties, continued to perform the primary duties of the employee relations function until well into the October-November, 2000 time frame. These duties can be very time consuming and frequently demand quickly changing priorities and efforts, as when a serious complaint is made regarding a District employee. It is understandable, in the absence of any problems being brought to
his attention, that he did not closely supervise an experienced senior professional who had demonstrated in the past her ability to work successfully with minimal direction.
Retaliation by Mr. Christ
As noted previously, Mr. Christ is not currently supervising Ms. Trinkaus. The decision to temporarily change the reporting relationship was appropriate, given Ms. Trinkaus’ serious allegations. However, I find no evidence that Mr.
Christ’s behavior was threatening toward Ms. Trinkaus as she portrays. I further find no evidence that Mr. Christ engaged in retaliation because Ms. Trinkaus filed a Workers Compensation claim or because of any other, unstated, cause. Mr. Christ does, on occasion, and usually only with considerable provocation, lose his temper. When he does so, he is known to swear or use profanity. The record does not suggest he directs his language at an individual; rather he swears at the circumstances which caused him to lose his temper. He has been counseled about this trait and I do not believe he is a threat to any District staff.
When he became aware of performance concerns about one of his employees surrounding the hiring Essentials program, Mr. Christ acted. The fact that this came to his attention after the Workers Compensation claim was filed is irrelevant. Had he failed to act when confronted with a situation of the magnitude of the one presented, he would have been seriously derelict. The fact that, when he began to examine the record of one of his employees, he found other causes for concern about her performance is likewise not relevant. As noted above, poor performance is, and should be, addressed at the District when it comes to light.
I find there is no cause with respect to retaliation or the subjection of Ms.
Trinkaus to a hostile work environment by Mr. Christ.
Retaliation by Ms. Kuligofski
Since Ms. Trinkaus began reporting directly to Ms. Kuligofski (a move she requested twice) Ms. Trinkaus has complained about managerial decisions and actions taken by Ms. Kuligofski and about their interactions. I find no evidence that Ms. Kuligofski has acted at any time in a hostile, abusive or retaliatory manner.
Ms. Trinkaus is receiving closer supervision than she experienced in the past. Managerial decisions are being made and actions taken with which she does not agree. But, such managerial decisions and actions do not comprise hostile, abusive or retaliatory management practices. If this were the case, every decision unfavorable to an employee would result in a complaint to this office. Managers at all levels are expected, as a critical element of their positions, to make required decisions in a timely manner, taking into account all relevant information and with an eye on the impact of their actions on the District and all of its stakeholders, including the employees.
I find there is no cause with respect to retaliation or the subjection of Ms.
Trinkaus to a hostile work environment by Ms. Kuligofski.
Further recommendations
Ms. Trinkaus should receive the out- of-cycle appraisal which was drafted several months ago but not delivered because of her appeal. This appraisal carries an overall rating of "3" and, because it could have been given to her ninety days after the revised appraisal,
save for her appeal, the rating should be retroactive to approximately
April 9, 2001. This will produce a salary increase also retroactive to the same date.
Based on the record and the nature of the complaints, it is my opinion the relationship between Ms. Trinkaus and
Mr. Christ is irretrievably damaged. I therefore recommend you consider alternatives for Ms. Trinkaus’ supervision within the Human Resources department. Two possibilities are to leave her reporting direct to Ms. Kuligofski or to have her report to Ms. Aimée Candal, the Human Resources Manager who recently joined our staff.
By memorandum dated October 5, 2001, Mr. Schiller informed Ms. Trinkaus that he completely concurred with
Mr. Uebel's findings and recommendations. Mr. Schiller approved Mr. Uebel's revisions to Ms. Trinkaus' appraisal. He directed that Mr. Uebel's recommendation as to Ms. Trinkaus' out-of-cycle appraisal take effect, giving her an overall rating of "3" and a consequent pay increase retroactive to the beginning of the first pay period in April 2001. Mr. Schiller accepted Mr. Uebel's findings of no cause as to Ms. Trinkaus' allegations of retaliation against Ms. Kuligofski and Mr.
Christ. Finally, Mr. Schiller directed that, effective October 8, 2001, Ms. Trinkaus would report directly to Aimée Candal, the newly hired human resources manager.
During the week of October 8, 2001, Ms. Trinkaus received the out-of-cycle performance appraisal, which carried an overall rating of "3" and a lump sum payment representing
the retroactive salary increase ordered by Mr. Schiller. Given the timing, the out-of-cycle appraisal also served as
Ms. Trinkaus' 2001 annual performance appraisal. Ms. Trinkaus received ratings of "4" in the categories of Job Knowledge and Quality. She received ratings of "3" in the categories of Behavior, Quantity, and Communications, and her improvement in those areas was remarked upon by Ms. Kuligofski, still her direct supervisor at the time the appraisal was written. Ms. Trinkaus received a rating of "2" in the category of Dependability, with the following comments:
Ms. Trinkaus continues to inconsistently complete assigned projects. Her performance in certain instances is acceptable. However, Ms. Trinkaus has not consistently carried through with meeting deadlines and coordinating effectively with others when providing and preparing training services. She sometimes waits until a deadline is approaching or until being prompted several times before beginning or completing work on some assignments. As a result, errors, misunderstandings and delays occur, and staff in HRD and other departments are impacted by "last minute" activities. Some specific examples include:
Regular/routine coordination of the Beyond Sexual Harassment training program, mandatory for all staff;
Coordination of a March 22, 2001 training program for the Land Resources Department;
Completion of a re-write of the Welcome to the District booklet;
Ensuring work products are spell checked or proofread by others prior to printing/publication;
Ensuring that routine procedures are followed in a timely manner, taking into account the needs and workloads of other staff members (e.g., providing sufficient lead time for print requests, ordering of training materials and similar processes).
These items, among others, were discussed with Ms. Trinkaus on July 25, 2001.
Most training functions are planned and can be scheduled or coordinated well in advance of a class being held. It therefore should not be difficult to ensure that all stages of training-related projects are carried out in a timely fashion. HRD management have discussed with Ms. Trinkaus the development of a training checklist form to itemize all of the steps that routinely occur in the development and scheduling of training programs, including building in of critical deadlines. That way, for each program the checklist can be followed by Ms. Trinkaus and by the administrative staff who assist her, to keep all programs flowing smoothly and to avoid delays, miscommunication and last minute rushes.
For other activities, Ms. Trinkaus has been
asked to coordinate closely with HRD management and to let us know immediately if conflicting priorities occur, so that we can work together to best reassess priorities, allocate resources and provide Ms. Trinkaus with assistance she may need to complete assigned tasks.
Ms. Trinkaus signed the appraisal acknowledging receipt of the out-of-cycle appraisal on October 16, 2001. Along with her signature, Ms. Trinkaus wrote:
For the record, this out-of-cycle appraisal covers the entire FY 2001 and is an administrative follow up to the overall rating of "2" for the previous year. I disagree with references to the FY 2000 appraisal which remains in appeal. The FY 2000 appraisal has been moving through the
appeal process since November 2000. Numerous "examples" supporting the "2" rating have been removed during various stages of this process, including the most recent (Employee Relations Specialist report), which I received one working day prior to receiving this appraisal last week. Upon inquiry, the Inspector General has informed me that I have one remaining level of appeal for the FY 2000 appraisal, and I plan to submit by final appeal request to that level no later than October 31, 2001. Therefore, since this out-of- cycle review is an outgrowth of the
FY 2000 rating "2" which could change
pending the final appeal, I choose not to comment at this time.
By memorandum dated October 31, 2001, Ms. Trinkaus submitted her request for final appeal to Gene Heath, assistant executive director of the District. In her memorandum, Ms. Trinkaus alleged that Mr. Uebel's report contained "significant omissions of fact and errors which result in a distorted and biased portrayal of my job performance, surrounding events, and the actions of myself and others."
Ms. Trinkaus complained that, at the first level of appeal, Ms. Kuligofski was in effect investigating her own work, because she had signed off on Mr. Christ's Original Appraisal: "This created an inherent bias since significant changes to the content, particularly to the overall rating, could have clouded her own performance review for that period." Ms. Trinkaus complained that, though Ms. Kuligofski struck some examples of Ms. Trinkaus' poor performance and
moved some examples between categories, Ms. Kuligofski retained the overall rating of "2."
Ms. Trinkaus complained that the Inspector General did not commence a de novo investigation, but rather reviewed Ms. Kuligofski's work and conducted only such original investigation as he believed necessary to check the validity of Ms. Kuligofski's report. She further complained to Mr. Heath that the Inspector General unfairly declined to investigate her allegations about post-appraisal events or about Building Two.
Ms. Trinkaus complained that, contrary to her hopes that the appeal before Mr. Schiller would "allow for open discussion (and resolution) of points of disagreement,"
Mr. Schiller assigned Mr. Uebel "to conduct yet another investigation" consisting of reviewing the previous investigations. She further complained that Mr. Uebel was a poor choice because he was investigating his immediate supervisor, Ms. Kuligofski.
As to Ms. Trinkaus' last point, the evidence at the hearing established that Mr. Schiller directed Mr. Uebel to report directly to him for purposes of the investigation.
Mr. Schiller made it clear to all concerned that Mr. Uebel was to have a free hand in conducting the investigation and that he would see to it that Mr. Uebel suffered no adverse consequences.
Both Mr. Schiller and Mr. Uebel testified that the assignment came about because Mr. Schiller had no one else to turn to. Ordinarily, Mr. Schiller would appoint someone from Human Resources such as Ms. Kuligofski or Mr. Christ, but they were involved in the case. If they were unavailable,
Mr. Schiller would typically ask the Inspector General to investigate, but in this instance Fritsch had already investigated the matter.
Ms. Kuligofski credibly testified that it would never occur to her to take action against Mr. Uebel based on his findings in the investigation. Further, Ms. Trinkaus was present at the meeting during which Mr. Uebel was appointed, and she raised no objection then or at any time prior to her appeal to Mr. Heath.
On or about October 29, 2001, while her appeal before Mr. Heath was still pending, Ms. Trinkaus received the final version of her 2000 Performance Appraisal, as amended through her appeal to Mr. Schiller.
Mr. Heath reviewed all the previous documentation.
On November 8, 2001, he held a lengthy meeting with Ms. Trinkaus, also attended by Ms. Trinkaus' new supervisor, Aimée Candal.
By memorandum to Ms. Trinkaus, dated November 16, 2001, Mr. Heath upheld the revisions to the overall rating of
"2" in Ms. Trinkaus' 2000 Performance Appraisal contained in Mr. Schiller's memorandum of October 5, 2001.
Aimée Candal, human resources manager, began acting as Ms. Trinkaus' direct supervisor on October 8, 2001. Ms. Candal had worked in the field of human relations since 1988, handling employee relations, benefits, recruitment, and training. She had extensive experience both in the substantive areas of her position and as a manager generally.
Ms. Candal was new to the District. Mr. Schiller assigned her as Ms. Trinkaus' supervisor in the hope that a fresh face would provide Ms. Trinkaus with the best opportunity to make a new start. Ms. Candal knew there had been problems with Ms. Trinkaus, but made a conscious decision not to dwell on the details of past disputes. She had read Mr. Uebel's report, but had not delved into the minutiae of the supporting documentation. She wanted to give Ms. Trinkaus every opportunity to succeed under her supervision.
At the time Ms. Candal assumed her duties as Ms. Trinkaus' supervisor, Ms. Trinkaus had received the
negative report on her appeal to Mr. Schiller but had yet to appeal to Mr. Heath. On October 8, 2001, Ms. Candal had a discussion with Ms. Trinkaus to confirm that she was now Ms. Trinkaus' supervisor. Ms. Trinkaus immediately stated that she intended to appeal Mr. Uebel's report and Mr. Schiller's decisions. Ms. Candal acknowledged that Ms. Trinkaus had the
right to appeal, but suggested it would be a good idea to put these issues behind her and focus on her future job performance.
Upon learning that Ms. Candal had read Mr. Uebel's report, Ms. Trinkaus stated that she hoped Ms. Candal would keep an open mind, because she was unaware of all the facts. Ms. Candal told Ms. Trinkaus that so long as she came to work, did her job and met deadlines, they would have no problems.
The first two weeks of Ms. Candal's supervision went well. Ms. Candal told Ms. Kuligofski that she thought things were going to work out between her and Ms. Trinkaus. Ms. Candal told Ms. Kuligofski that Ms. Trinkaus seemed cooperative and focused on her work, which gratified Ms. Kuligofski.
However, within one month, performance problems with Ms. Trinkaus commenced. On November 5, 2001, Ms. Kuligofski informed Ms. Candal that a Master Training Plan would not be presented to senior staff of the District because Ms. Trinkaus had failed to get it on the senior staff's meeting agenda.
Ms. Candal was surprised because she and Ms.
Trinkaus had been discussing the Master Training Plan for two weeks. Ms. Trinkaus' only excuse was that she thought the senior staff meeting was on another day. Ms. Candal advised
Ms. Trinkaus to get the Master Training plan on the agenda for the next senior staff meeting.
Ms. Trinkaus later approached Ms. Candal and told her that the next senior staff meeting was scheduled for December 3, 2001, but that she had planned to be off that day. Ms. Candal informed Ms. Trinkaus that it was her responsibility to present the Master Training Plan to senior staff, and advised Ms. Trinkaus to forego her plans and attend the meeting.
Over the period from November 7 to November 16, 2001, Ms. Candal made repeated inquiries to Ms. Trinkaus regarding the completion of a training checklist that Ms. Kuligofski had requested at least one month before Ms. Candal's initial inquiry. Ms. Candal also had to pursue Ms. Trinkaus about changes to the District's employee manual that Ms. Trinkaus was to have written. On November 16, Ms. Trinkaus argued with Ms. Candal for over twenty minutes about these two items, then went to her office and finished the work on them in less time than she spent arguing.
On November 20, 2001, during a discussion about changes to the educational reimbursement form, Ms. Trinkaus complained to Ms. Candal that every time she made a suggestion, a supervisor would attach a deadline to it and she would get in trouble. Ms. Candal counseled Ms. Trinkaus on
the importance of meeting deadlines once management accepted a "suggestion" and made it into a "project."
During this discussion, Ms. Candal also attempted to counsel Ms. Trinkaus on her habit of arguing about performing any task that she believed was not important or that she did not want to do. Ms. Trinkaus indicated that she understood what Ms. Candal was saying.
Also during this conversation, Ms. Trinkaus informed Ms. Candal that a training session scheduled for December 11, 2001, could not be held on that date because Ms. Trinkaus had failed to distribute the notice on time.
Matters came to a head between Ms. Trinkaus and
Ms. Candal on December 18, 2001. Ms. Candal chaired a meeting of her section, attended by Ms. Trinkaus and several other persons. One subject was a discussion of where to hold the annual "Heritage Luncheon." Several locations were discussed, including the training room where Ms. Trinkaus held her classes. Ms. Trinkaus stated that food was never allowed in the training room.
In the past, disputes had occurred over the use of the training room by anyone other than Ms. Trinkaus. Ms. Trinkaus had historically controlled the scheduling of the training room. Though this authority had been taken away by Ms. Kuligofski and the room was subject to scheduling through the administrative office as was any other meeting room at the
District, Ms. Trinkaus continued to assert ownership of it, occasionally leading to conflicts with co-workers. In this instance, Ms. Candal made it clear that the training room could be considered as an option for the luncheon. Ms.
Trinkaus acquiesced, grudgingly.
The meeting moved on to an agenda item in which attendees reported on training sessions they had attended in Tampa the previous week. Ms. Lee commented on a class about the use of music in training, and how the instructor had talked about studies demonstrating that rock music actually enhanced young peoples' concentration and retention of homework.
Ms. Lee's remarks led to general comments from the group about using music to relax at home or to help concentrate at work. Ms. Trinkaus stated that music interfered with her work, and that she could not concentrate at all when music was playing. Ms. Candal, who played a radio in her office, jokingly responded that she wasn't going to turn her music off for anyone.
Ms. Trinkaus chose to take this comment seriously, asking Ms. Candal whether she was indifferent to the fact that her music might be keeping someone from doing her work.
Ms. Candal, realizing that Ms. Trinkaus had not taken the joke, responded that she would be happy to turn her music down if it was too loud. Ms. Trinkaus continued commenting on Ms.
Candal's indifference to disturbing others until Ms. Candal changed the subject.
Amrit Lee, Violet Kelley, and Rachel Vizner were section employees present at the December 18 meeting. All three testified at the hearing that they had no special recollection of this incident. Ms. Candal testified that at least two unnamed persons present at the meeting made comments to her about Ms. Trinkaus' behavior and demeanor at the meeting.
After the meeting concluded, Ms. Candal asked Ms. Trinkaus to come to her office. Ms. Candal began to counsel Ms. Trinkaus on her behavior at the meeting. Ms.
Trinkaus became agitated and immediately began to question Ms. Candal's management style, saying she was more harsh, aggressive and demanding than any manager Ms. Trinkaus had ever seen. Ms. Trinkaus told Ms. Candal that she needed to attend training classes to improve her management style. She commented on Ms. Candal's "body language," claiming that she could discern Ms. Candal's hostility from the way she was sitting.
Ms. Trinkaus went on to detail several instances in which Ms. Candal had exercised poor management skills. She contended that Ms. Candal had tried to interfere in Ms. Trinkaus' appeals of her performance appraisals. She accused Ms. Candal of not giving her enough positive feedback, and
stated that she did not trust the little positive feedback that Ms. Candal did give.
Ms. Candal repeatedly attempted to steer the conversation back to the issue of Ms. Trinkaus' behavior at the section staff meeting, but Ms. Trinkaus would not be moved from the topic of Ms. Candal's management style. Ms. Candal was finally able to explain that there would be times when she alone, as manager of the section, made decisions that Ms. Trinkaus would simply have to accept. Ms. Trinkaus replied, "Fine. I just won't say anything. I know how this goes."
Ms. Trinkaus then walked out of Ms. Candal's office.
The above findings relate the meeting as recollected by Ms. Candal. Ms. Trinkaus' testimony was that Ms. Candal attacked her, "firing issues," telling her to quit "harping" on things after a decision has been made. Ms. Trinkaus testified that she did not raise her voice and was "respectful but firm" as she attempted to start a "dialogue" with Ms. Candal. Ms. Trinkaus' testimony essentially agreed with that of Ms. Candal as to what was discussed.
Ms. Trinkaus' self-serving characterization of her demeanor at the meeting cannot be credited. Her description of this meeting was of a piece with her narratives of the many other arguments and confrontations set forth in these findings of fact. Invariably, Ms. Trinkaus was the voice of reason, attempting to have a "dialogue" when the other person-- at
various times, Mr. Christ, Ms. Kuligofski, or Ms. Candal-- would erupt with hostility or aggression. To credit Ms.
Trinkaus' testimony would not only require the undersigned to disregard the testimony of virtually everyone else who witnessed these events; it would require that the undersigned overlook the ample display of mercurial temperament and extreme sensitivity to criticism Ms. Trinkaus provided at the final hearing.
The December 18 confrontation, along with the continuing behavior and performance problems with Ms. Trinkaus, led Ms. Candal to consider giving Ms. Trinkaus an out-of-cycle performance appraisal. She discussed the matter with Ms. Kuligofski, who agreed that it was necessary.
On December 19, 2001, Ms. Candal completed drafting the appraisal, and wanted to give it to Ms. Trinkaus immediately. Ms. Kuligofski insisted that they wait until after the Christmas holidays. Ms. Candal subsequently redrafted the appraisal to include events that occurred on December 21, 2001.
The out-of-cycle appraisal was given to Ms.
Trinkaus on January 3, 2002, at a meeting also attended by Ms. Kuligofski. At this meeting, Ms. Candal made it extremely clear that if there were not an immediate change in Ms.
Trinkaus' behavior, immediate action would be taken, up to and including dismissal from employment.
The out-of-cycle appraisal gave Ms. Trinkaus an overall performance rating of "2." Her ratings for Job Knowledge and Quality remained unchanged from their previous rating of "4." Her rating for Quantity remained unchanged at "3." Her rating for Behavior and Dependability was "1." Her rating for the category of Communications was "2."
The out-of-cycle performance appraisal included the following comments by Ms. Candal under the category of Behavior:
Although several discussions have been held with Ms. Trinkaus about performance expectations with respect to her behavior, she continues to display unacceptable behavior when conflicts arise and/or when someone disagrees with her opinions. When she is given any form of criticism for her actions or behavior, she rationalizes away the circumstances, gets upset at the observation and does not appear to understand, or accept feedback. When counseling is conducted she does not handle the interaction well. Her composure becomes confrontational, emotional and dismissive of any feedback indicating she must improve her behavior or correct her action.
Ms. Trinkaus reacts poorly to direction and argues when she doesn't agree with a job assignment or requirement and/or does not want to perform a required task. For example, on December 18, 2001, due to her disruptive behavior in a Section Meeting, I asked her to come to my office for a discussion. As soon as I began to discuss her behavior she immediately began to discount what I was conveying to her and began to tell me what a "poor manager" I was. She refused to accept that anything she had done was inappropriate.
This pattern of repeated, unacceptable behavior does not meet expectations. These on-going behaviors have been cited in previous Performance Appraisals. (Specifically, she received rating 2s in behavior in 1994, 1998, and 2000).
At the hearing, the District stipulated that the statement in the last quoted parenthetical is incorrect. Though her 1994 and 1998 performance appraisals contained negative commentary concerning her behavior, Ms. Trinkaus did not receive "2" ratings in those years. Ms. Trinkaus received a "3" in the Behavior category in 1998. The performance appraisal format was somewhat different in 1994. The negative commentary regarding Ms. Trinkaus' behavior in 1994 fell under the category of "Attitude," in which she nonetheless received a "3" rating.
The out-of-cycle performance appraisal included the following comments by Ms. Candal under the category of Dependability:
Ms. Trinkaus continues to let assigned tasks fall through the cracks and to miss key deadlines. When this happens she scrambles to pull things together at the last minute, often impacting others with whom she must work. When these issues are addressed, she hedges the truth as to her understanding of deadlines or why a task wasn't done.
I counseled Ms. Trinkaus on November 8, 2001 over her miscommunications on a Leave Form (November 7, 2001) where she was not completely truthful in her communications to me. In addition, earlier in the week
she had stated that she did not know when the Senior Staff meeting was held and missed the time frame to prepare and present the Master Training Plan (November 5, 2001), although she had known about the presentation for several months.
At times, Ms. Trinkaus does not set priorities and/or procrastinates on projects to the last minute resulting in missing deadlines or causing others to shift their schedules. One example of this is when she was to present the Master Training Program to Senior Staff (referenced above). Another example of this is when she had to cancel a December training because she did not to have [sic] notices printed in a timely fashion.
Again, this is an on-going behavior even
though Ms. Trinkaus has been aware of preparation time frame requirements from departmental meetings (August 8, 2001),
memos (August 23, 2001), and various performance and assignment related meetings held over the last year and a half when reporting to the department director, Elaine Kuligofski, Human Resources Manager John Christ and, most recently, Human Resources Manager Aimée Candal. Ms.
Trinkaus has been repeatedly told to plan every aspect of her training appropriately to include: scheduling both her time and others involved, ordering materials, notification of participants and any other details in order not to adversely impact the total preparation process. (Documented in Performance Appraisals-- 1993, 1994,
2000, 2001.)
Ms. Trinkaus continues to react poorly to direction, argues, and states that conveyed information is incorrect when she doesn't agree with an assignment or the task at hand. Again, on December 18, 2001, though she had been given a directive to discuss things with me prior to going to our director or others (Expectation meeting-- October 12, 2001; acknowledgement by Ms.
Trinkaus in an [e-mail] dated November 11,
2001), she [e-mailed] Ms. Kuligofski about changing Orientation schedules without letting me know. When I asked her why she had done this, she replied she didn't know she couldn't do that and things had "never had to be so formal before" in the department.
Another example of this behavior was as recent as December 21, 2001. Rather than following through and personally handling the return of approved Tuition Reimbursement forms to affected employees or handling the direction to Administration on paperwork she needed for a personal training class, she directed me, her manager, through an [e-mail] sent after hours (prior to leaving for vacation) to handle them for her. In addition she left incomplete instructions, which deviated from our normal procedures, in regard to purchase orders for upcoming training to be held mid-month, to the Administrative Supervisor. This pattern of performance does not meet expectations.
The out-of-cycle performance appraisal included the following comments by Ms. Candal under the category of Communications:
Ms. Trinkaus has not been open to coaching or direction given and when challenged about her behavior, she reacts inappropriately by arguing and refusing to accept accountability for her actions. She loses her composure, becomes defensive and tends to raise her voice, make accusations and otherwise say things she shouldn't. In the counseling session on December 18, 2001 she repeatedly stated it was I who had the problem and refused to acknowledge there was anything she should improve. Such behavior directed repeatedly at her manager is tantamount to insubordination. Again, Ms. Trinkaus has displayed a pattern of such unacceptable performance as noted in
previous Performance Appraisals-- 1994, 2000.
A Corrective Action Plan was attached to the out- of-cycle appraisal. The plan called for Ms. Trinkaus to work at not becoming defensive when asked to perform a task with which she did not agree. It called for her to maintain professionalism at all times. The plan stated that Ms. Trinkaus would be provided training in organizational skills to assist with her dependability. It called for her to complete tasks relating to assignments or events expected to occur when she was on vacation well before leaving. The plan concluded with the following: "If at any time during this 90- day action plan, Ms. Trinkaus does not comply with the above plan, further action will be taken, up to and including discharge from District employment."
On January 7, 2002, Ms. Candal learned that at least two scheduled participants in a Myers-Briggs workshop to be conducted by Ms. Trinkaus on January 9, 2002, had phoned HRD to inquire as to the whereabouts of the pre-test they had been advised would be sent to them in advance of the class. Ms. Trinkaus' practice had been to distribute the pre-test prior to the workshop and instruct the participants to complete the pre-test beforehand.
When Ms. Candal asked Ms. Trinkaus about the pre- test, Ms. Trinkaus told her that she had changed her mind
about giving the pre-test in advance of class. Ms. Trinkaus had decided to have the participants complete the test in class. Ms. Trinkaus told Ms. Candal that she had instructed her assistant, Emily Carlsen, to notify the participants that they would be taking the test in class.
Ms. Candal phoned Ms. Carlsen at home and asked her whether Ms. Trinkaus had instructed her to notify the participants of the change in testing procedure. Ms. Carlsen stated that Ms. Trinkaus had told her that she would administer the test in class, but had given Ms. Carlsen no instructions to notify the participants of the change.
Ms. Candal then confronted Ms. Trinkaus with this information. Ms. Trinkaus continued to assert that Ms. Carlsen was to leave a voice mail to all participants informing them of the change in test administration. When Ms. Candal asked her if she was accusing Ms. Carlsen of not telling the truth, Ms. Trinkaus conceded that she could not precisely recall her conversation with Ms. Carlsen.
At the hearing, Ms. Carlsen credibly testified that Ms. Trinkaus gave her no instruction to notify the participants about the change. Ms. Trinkaus decided not to tell the participants that the test would be administered in the class, because people "get freaked when they hear the word 'test.'" Ms. Trinkaus instructed Ms. Carlsen to tell the
participants to bring a pen or pencil to the workshop, rather than tell them they would be taking a test.
The conversations between Ms. Candal and Ms.
Trinkaus devolved into the typical pattern. Ms. Trinkaus alleged that she was being persecuted and held to a different standard than other employees, when Ms. Candal was simply seeking an explanation for the phone calls received from workshop participants.
Ms. Trinkaus' failure to notify the workshop participants of the change in test administration, and her attempt to shift the blame onto her student assistant, on only the second working day after receiving an out-of-cycle appraisal, proved the last straw for Ms. Candal. She went to Ms. Kuligofski and broached the subject of dismissing Ms. Trinkaus from her employment with the District.
Ms. Candal told Ms. Kuligofski that Ms. Trinkaus continued to respond aggressively to criticism, and would not acknowledge that she had any responsibility for the problems she was causing. Ms. Candal told Ms. Kuligofski that she didn't think Ms. Trinkaus was ever going to change or "get the message."
Ms. Kuligofski and Ms. Candal discussed whether there would be any point in continuing with the Corrective Action Plan in the hope that Ms. Trinkaus' behavior and performance would improve. They decided that discharge was
the only reasonable option. Later that day they met with Mr. Uebel, the employee relations specialist, who concurred in their decision.
On January 9, 2002, Mr. Uebel prepared a Notice of Proposed Agency Action, proposing to discharge Ms. Trinkaus from District employment effective 5:00 p.m., January 31, 2002, for inappropriate behavior and misrepresentation in communication; lack of dependability in following-through with details of her job duties and assignments; and refusal to accept or follow managerial counseling and direction.
On January 9, 2002, Mr. Uebel, Ms. Kuligofski and Ms. Candal delivered to Ms. Trinkaus the Notice of Proposed Agency Action, together with a Notice of Rights informing Ms. Trinkaus of her right to a hearing pursuant to Chapter 120, Florida Statutes.
The District uses Personnel Guidelines as general advisory guides to handling employee issues. They are not intended to be strictly interpreted or to have the force and effect of agency rules. Each personnel guideline provides that it "may be interpreted, revised, and/or rescinded based upon the operational needs of the District, at the discretion of the Executive Director."
Personnel Guideline 010, "Employee Performance Appraisal," serves as a guide to the District’s performance appraisal process, and to the discharge of employees for
performance-based reasons in accordance with that process. Personnel Guideline 010 provides that an out-of-cycle performance appraisal may be conducted at any time and at the discretion of the supervisor to document any significant increases or decreases in the level of job performance.
Personnel Guideline 023, "Employee Discipline and Discharge," serves as a guide to the District’s discipline and discharge process concerning matters of a disciplinary nature, which are typically instances in which a law or District policy is broken, or where other misconduct occurs unrelated to the employee's job performance.
No evidence was presented at the hearing indicating that Ms. Trinkaus broke any law or District policy, or that she committed misconduct. Ms. Trinkaus was discharged for performance-based reasons, subject to Personnel Guideline 010, "Employee Performance Appraisal."
Ms. Trinkaus contended that the District action in dismissing her deviated from the strict language of Personnel Guideline 010, which speaks of dismissal only in terms of an employee who has received an overall performance rating of "1." As noted above, the Personnel Guidelines are advisory, not mandatory. Ms. Trinkaus' long record of substantive and behavioral deficiencies, coupled with her adamant refusal even to acknowledge her problems, rendered it futile for the
District to provide her further opportunities to improve her job performance.
As discussed in the Conclusions of Law below, the District is an "at will" employer, and need not establish "just cause" for the dismissal of an employee. The employment application signed by Ms. Trinkaus on July 1, 1992, provided that ". . . my employment and compensation may be terminated with or without cause, and with or without notice, except as required by law, at any time at the option of either myself or the District." Thus, Ms. Trinkaus had notice at the outset of her employment that the District considered itself an "at will" employer.
The record in this case renders the distinction irrelevant, because the District established that its dismissal of Ms. Trinkaus was justified under either an "at will" or "just cause" standard.
Ms. Trinkaus' undependability and obstreperous, often insubordinate behavior, over a long period justified her dismissal well before it actually occurred. The most striking aspects of this case are how long the District was willing to tolerate Ms. Trinkaus' divisive, counterproductive presence and how great were the District's efforts to arrive at a working environment in which Ms. Trinkaus could function normally. Ms. Trinkaus was given three different supervisors over a period of two years. She was counseled repeatedly.
Her appeal of the 2000 performance appraisal was heard at four different levels of District management. The appraisal was amended significantly to give Ms. Trinkaus the benefit of every doubt.
The evidence established that for some years prior to 1997, Ms. Trinkaus had thrived in an atmosphere of minimal direct supervision and of her managers' apparent willingness to shrug off her poor behavior. When Ms. Kuligofski took over as director of the Human Resources department, she had a mandate to change the department's mission. She introduced a more professional management style to the department. She directed her managers to pay attention to what happened on a day-to-day basis, to enforce deadlines, and to require employees to observe administrative requirements and to behave professionally in their dealings with each other.
This was a new experience for Ms. Trinkaus, who was unable to cope with rigorous supervision. Her testimony at the hearing was replete with complaints that "this wasn't the way we'd always done it," "we've never been so formal." She complained of feeling "scrutinized" by her superiors, as if that were improper or offensive.
Ms. Trinkaus also complained that she was being held to "different standards" than other employees. The evidence established that, after Ms. Kuligofski took over as director of the department, Ms. Trinkaus was finally held to
the same standards as other employees and resented it bitterly.
During three days of direct testimony, Ms. Trinkaus offered what she considered reasonable excuses for her failures. When she lacked an excuse, she would attempt to minimize the importance or impact of her failures. The many confrontations with fellow employees and supervisors noted above were described by Ms. Trinkaus as attempts to "start a dialogue." Criticisms of her performance always derived from some personal animus.
Unable to provide any overt examples of the hostility she claimed permeated the Human Resources department, Ms. Trinkaus at various points claimed she could discern the underlying hostility in the "body language" of Mr. Christ, Ms. Kuligofski, and Ms. Candal. In a typical instance, Ms. Trinkaus recalled complaining to Ms. Kuligofski that the several moves from one building to another were affecting her ability to do her job. Ms. Kuligofski shrugged. Ms. Trinkaus immediately asked Ms. Kuligofski, "Are you trying to get me to quit my job?"
Ultimately, it was Ms. Trinkaus' complete inability to accept criticism or take responsibility for her performance that left the District no choice but to dismiss her. An employer can only so long tolerate an employee who cannot or will not accept instruction from her superiors.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.
The burden of proof in this administrative proceeding is on the District as the party asserting the affirmative of the issue, i.e., that it has sufficient grounds for terminating the employment of Ms. Trinkaus. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern & Company, 670 So. 2d 932, 934 (Fla. 1996); Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
The District is not subject to the provisions governing state employment found in Chapter 110, Florida Statutes. Those provisions apply only to a "state agency," defined as "any official, officer, commission, board, authority, council, committee, or department of the executive branch or the judicial branch of state government as defined in chapter 216." Section 110.203(1), Florida Statutes. The District is not a part of the executive or the judicial branch of state government.
Section 373.079(4)(a), Florida Statutes, provides in pertinent part:
The governing board of the district is authorized to employ an executive director, ombudsman, and such engineers, other
professional persons, and other personnel and assistants as it deems necessary and under such terms and conditions as it may determine and to terminate such employment.
. . .
Nowhere in this authorization to terminate employees does the statute specify that "just cause" be shown before an employee is terminated.
Section 373.044, Florida Statutes, authorizes the District to adopt rules relating to personnel matters. The District has not promulgated such rules.
The District's Personnel Guidelines 010 and 023 serve as general guidance to management and employees, but do not create "just cause" standards for continued employment or create a property interest in continued employment.
In the absence of any legal authority to the contrary, it must be concluded that the District is an "at will" employer under its statutory authorization to hire and terminate employees, and through its longstanding practice.
Persons who are employed entirely "at will" have no "property interest" or right in employment and cannot raise constitutional due process requirements concerning the deprivation of such an interest. Shelton v. City of Atlanta, 796 F.2d 1391, 1392 (11th Cir. 1986).
"Property rights" in employment may be created by state statute, rule, regulation, contract or employer policy indicating that discharge will be only "for cause," and the
same can invoke due process protections attendant thereto. Warren v. Crawford, 927 F.2d 559, 562-563 (11th Cir. 1991); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576- 578 (1972); Nicholson v. Gant, 816 F.2d 591, 597 (11th Cir.
1987).
No statute, rule or regulation confers any rights on District employees, no employment contract between the District and Ms. Trinkaus exists or was alleged to exist, and the District’s Personnel Guidelines do not indicate that employees can be dismissed only "for cause." Therefore, Ms. Trinkaus has no property rights to District employment, and so no due process rights regarding a property interest attendant to her discharge.
The general rule of at will employment in Florida is that an employee may be discharged at any time, as long as he is not terminated for a reason prohibited by law. Davidson v. Iona-McGregor Fire Protection and Rescue District, 674 So. 2d 858, 861 (Fla. 2d DCA 1996). An employee of an at will employer may be discharged for any reason, including poor performance, or for no reason at all and, without more, has no opportunity for legal redress.
However, notwithstanding the fact that the District is an at will employer, the District is also a public employer, i.e., a special district or political subdivision of the State of Florida.
A public employee may, upon receipt of an adverse employment action such as a discharge, have a "liberty interest" in his or her good name, reputation, honor or integrity, pursuant to the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution. Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971), as
limited by Paul v. Davis, 424 U.S. 693, 706-710 (1976); Cannon v. City of West Palm Beach, 250 F.3d 1299 (11th Cir. 2001).
A public employee’s liberty interest may be adversely affected by an employer when stigmatizing information about the employee is made part of the public record or otherwise published attendant to his or her discharge from employment. In such circumstance, due process requires that the public employee be given an opportunity for a post-termination "name-clearing" hearing. Buxton v. City of Plant City, 871 F.2d 1037, 1044-1046 (11th Cir. 1989); Dressler v. Jenne, 87 F. Supp. 2d 1308, 1313-1314 (S.D. Fla. 2000); Natale v. Broward County, 987 F. Supp. 926, 937-938 (S.D. Fla. 1997).
The District is subject to the Public Records Act, Chapter 119, Florida Statutes. Section 119.011(2), Florida Statutes.
With limited exception not relevant here, all records made or received in connection with the transaction of
official business are considered public records and are open for public inspection. Sections 119.011(1) and 119.07, Florida Statutes.
Personnel records are not exempt from public inspection. Ms. Trinkaus' personnel file is a public record. Section 119.07, Florida Statutes.
When an entity subject to the Public Records Act, such as the District, discharges an employee, it must provide notice and a post-termination "name-clearing" hearing to avoid deprivation of a liberty interest. Buxton, 871 F.2d at 1044- 1046; Garcia v. Walder Electronics, Inc., 563 So. 2d 723, 725 (Fla. 3d DCA 1990). The hearing in this case provided
Ms. Trinkaus with the post-termination name-clearing hearing to which she was entitled.
As found above, the District's grounds for terminating Ms. Trinkaus' employment would meet the standard for a "just cause" termination, if that were the standard. Ms. Trinkaus was concededly a competent trainer, and enjoyed a good reputation with persons outside the District and even among those District employees who did not have to work with her on a daily basis. However, within the ambit of those who worked with her, Ms. Trinkaus made herself an intolerable
presence. She actively resisted changing her ways and refused even to acknowledge that her behavior and work habits were
problematic, leaving the District with little choice but to dismiss her.
Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order dismissing the petition of Regina Trinkaus. It is further recommended that the final order state that only the final version of the 2000 performance appraisal be included in Ms. Trinkaus' personnel file and that the January 9, 2002, out-of-cycle performance appraisal will be corrected as regards the statements that Ms. Trinkaus received "2" ratings for Behavior in 1994 and 1998.
DONE AND ENTERED this 30th day of December, 2002, in Tallahassee, Leon County, Florida.
___________________________________ LAWRENCE P. STEVENSON
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 30th day of December, 2002.
ENDNOTES
1/ The District's reliance on Section 112.3187(8)(b), Florida Statutes, was based on the District's assertion that it is a
"local governmental authority" rather than a "state agency" to which a different limitations period applies.
2/ Throughout her testimony, Ms. Trinkaus made references to "what she was going through" and being "under a lot of pressure" by way of excusing her poor behavior. It is unclear to what she was referring, unless it was the events related in these Findings of Fact. Her husband lost his job in October 2000, then found a job in Martin County in April 2001, after which they had what Ms. Trinkaus described as a "commuter marriage." However, her comments regarding "pressure" and "going through" something were not limited to this period.
COPIES FURNISHED:
Regina R. Trinkaus 5127 Juliet Court
Spring Hill, Florida 34606
Lori A. Tetreault, Esquire Southwest Florida Water
Management District 2379 Broad Street
Brooksville, Florida 34604-6899
Frank A. Miller, Esquire Caglione, Miller & Anthony, P.A. 703 Lamar Avenue
Brooksville, Florida 34601
E.D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street
Brooksville, Florida 34609-6899
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 17, 2003 | Agency Final Order | |
| Dec. 30, 2002 | Recommended Order | Petitioner, an at-will employee entitled to a "name-clearing" post-dismissal hearing, failed to demonstrate that her employer acted improperly in any of its actions leading to her termination. |
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