Findings Of Fact The Orlando Police Department is organized on paramilitary lines and headed by a Director of Public Safety. Directly under him comes the Chief of Police who is the principal administrative officer of the department. His immediate staff which consists of 1 captain, 7 lieutenants, sergeants and patrolmen, includes an Administrative Aide who holds the rank of lieutenant and attends all staff meetings conducted by the Chief. In such position he is privy to all classified information received by the Chief and would appear to fit the definition of "confidential employee" under Section 447.02(5), Florida Statutes. Also in the Chief's Staff is a Research and Development Section and a Special Investigative Services Division. The former is headed by a lieutenant and is primarily responsible to research, develop and prepare all directives, regulations and general orders for the Department. The Special Investigative Services Division is headed by a Captain and contains an Internal Affairs Section, a Staff Inspection Section and an Intelligence Section, each headed by a lieutenant. The Internal Affairs Section handles all internal investigations of a confidential nature and monitors all disciplinary cases involving the police department. The staff Inspection Section conducts routine inspections of police units to insure compliance with guidelines and orders of the department. The Intelligence Section gathers information on organized crime and criminal acts on a larger scale than those routinely handled by the C.I.D. They interface with law enforcement agencies of the Federal government and keep the Chief apprised of developments. The Administrative Service Bureau is headed by a major and staffed with two captains, two lieutenants, 3 sergeants, seven patrolmen, sixteen civilians, cadets, and recruits for training. From this Bureau is assigned a patrolman as aide to the Mayor. This Aide attends all meetings involving the Mayor and the police department and is privy to all disciplinary actions within the police department that reach the attention of the Mayor. He also acts as courier between the Mayor and Police Department for confidential police records. Within the Administrative Services Bureau are numerous divisions and sections. The Personnel and Training Division handles personnel accounting, payroll records, training and records of personnel in detached service. Under this division is the Community Relations Section, Training Section and Personnel Section. The general function of the Community Relations Section is to handle public relations for the police department. This involves presentations at schools, civic associations, press releases, etc. The Training Section conducts recruit training and provides range the target practice ranges. Recruits are graded by the training officers, and these grades are based upon written exams given to all recruits. Similarly, the scores attained on the firing range are certified by the range officer and become part of the personnel record of the individual. The staff Support Bureau is headed by a major and includes two captains, one lieutenant, five sergeants, 14 patrolmen and 70 civilians. A forthcoming reorganization will reduce the number of patrolmen to two. Numerous divisions and sections come under the staff Support Bureau. In all of the above Bureaus, the personnel of which the City seeks to have excluded from the approved bargaining unit, the police officers generally wear civilian clothes and work a regular 40 hour workweek, 8:00 A.M. to 5:00 P.M., Monday through Friday. In this regard they differ from the uniformed personnel in the Field Operations Bureau who maintain personnel on duty 24 hours per day 7 days per week. The Field Operations Bureau contains the majority of the sworn officer personnel and is comprised of 1 major, 2 captains, 15 lieutenants, 44 sergeants and 285 patrolmen. In addition, there are 18 civilian positions consisting of secretarial personnel and parking meter attendants. A patrolman is assigned as aide to the major. He prepares written orders and letters put out by the major and reviews all disciplinary actions within the Bureau. One patrolman is assigned as court liaison and assists the State Attorney's office in scheduling witnesses and performing general liaison between the department and the State Attorney's office. The Field Operations Bureau consists of the Criminal Investigative Division (C.I.D.) and the Uniform Division. The former are plain clothed police officers divided into a youth section, vice section, crimes-again-person section, crimes-against-property section and the general assignment section. The latter encompasses the control section, jetport section, special operations section, and traffic section. Watches are maintained with 60-80 patrolmen assigned at one time who stand an 8-hour tour of duty with three watches assigned daily. Each watch has seven squads or sections with a sergeant in charge of each squad. The Detention Bureau has 1 lieutenant, 6 sergeants, and 61 civilians assigned. The sergeants work regular 8-hour shifts and review every arrest report to determine appropriateness and legality. One sergeant is responsible for the protection and custody of evidence in criminal cases and control of lost and found property. They supervise the performance of the assigned civilians. Since the duties and responsibilities of the various ranks are a necessary ingredient in the determination of their exclusion or inclusion in the appropriate bargaining unit, the evidence relating thereto will next be presented. Sergeants are the lowest rank the City contends should be excluded for the reason that there would be a conflict of interest between sergeants and patrolmen if they are in the same bargaining unit. Accordingly these duties and responsibilities will be first discussed. Sergeant's duties and responsibilities are generally contained in Section 100, Regulations of the Orlando Police Department Exhibit (7) which list them under Supervisory Members of the Department. Supervisors are therein described as employees having as one of their major responsibilities the general authority in the interest of the Orlando Police Department to direct other employees or members, to review grievances or the recommendations of such action, and to make effective recommendations regarding disciplinary matters, transfers, dismissals, etc. In carrying out their assignments sergeants prepare evaluation reports on patrolmen assigned under them. In order for patrolmen drawing specialist pay to continue to do so they must receive satisfactory performance ratings. Unfavorable efficiency reports affect eligibility for promotion exams and rank certification. Sergeants have authority to mete out punishment for minor transgressions. The highest level of punishment that can be awarded by a sergeant is a letter of censure which is placed in the personnel record of the recipient. The sergeant in charge of a patrol section prepares the zone assignment sheet (Ex. 31) wherein he assigns sectors and duties to the patrolmen in his section. In making these assignments independent judgment is exercised. In the event a patrolman reports out of uniform or is otherwise unprepared for assignment to duty the sergeant has the authority to relieve the man from duty without pay and send him home to get into proper uniform. Personnel requests such as transfers, leave, etc. are endorsed by those in the chain of command until they reach the approving authority. The sergeant's endorsement is effective in approving or disapproving the request. Sergeants can submit recommendations for commendation of the patrolmen under him. He also has authority to authorize up to one hour overtime without higher approval and to grant compensatory time off. Sergeants and above do not qualify for overtime pay. When the Lieutenant Watch Commander is absent from duty the senior sergeant assumes command and exercises the watch commander's authority. Sergeant's uniforms were changed from brown to white shirts in late 1974. At the same time they were authorized to discipline patrolmen for minor transgressions. Uniforms of lieutenants and above have consisted of white shirts for many years. On the other hand all members of the police force are paid at the same interval, have the same fringe benefits, all must maintain the same basic training standards, all are classified by the Civil Service System as "police officers", all are eligible for revenue sharing incentive pay from the State, all are paid from the wage classification plan, and all have the same powers of arrest. Article XIII of the Orange County PBA By-Laws provides for grievance procedures whereby a patrolman could file a grievance against a fellow member in the same union who disciplined the patrolman and seek to have the fellow member removed from the union. Art. XIII Section 2 provides: Any member of this association who voices criticism of another member, group of members or the association itself, without first seeking recourse through the provisions of Section 1 of this Article, shall be sub- ject to suspension of his membership, or ex- pulsion from the association..." This provision has not been exercised in the Orlando Police Department and the president of petitioner stated the interpretation of the bylaw provision is that grievance there refers to social rather than departmental action. Other members of petitioner testified that they didn't feel that membership in PBA would interfere with their carrying out duties that involved disciplining a fellow member of the PBA. With respect to those ranks above sergeant, little evidence was presented of specific duties and whether these duties required a finding that these officers are managerial employees. The general duties of these ranks were presented in Section 100, Exhibit 7. Furthermore, throughout the testimony was the clear import that majors had more authority and responsibility than captains who had more authority and responsibility than lieutenants who had more authority and responsibility than sergeants.
Recommendation In The Matter of City of Bridgeport (Police Department) and Bridgeport Local No. 1159, Selected Decisions [paragraph 49,868] the Connecticut Board held that the fact that sergeants, lieutenants, and captains of a city's police department exercised supervisory functions did not exclude them from the benefits of Connecticut's Municipal Employees Relations Act (MERA). Here these same officers had voted a year earlier not to be included in the overall bargaining unit and the Board appears to have affirmed the prior determination that the MERA did not preclude supervisory employees from being in the same bargaining unit as rank and file employees. The provisions of the MERA so construed does not appear in the decision. In Town of Stratford and Stratford Police Union, No. 407, 63 LRRN 1124 (1966) the Board determined that an election was proper for the captains and lieutenants to vote whether they wanted to be included in an overall police unit or to be separately represented by a unit of supervisors. The expressed policy of the Board in determining appropriate bargaining units is that the unit should be the broadest possible which will reflect a community of interest. At the same time it respects the special interests of certain groups of employees. I am not aware that such a policy has been announced by PERC. In the Matter of Borough of Rockway and Patrolmans Benevolent Association, Local 142, LLR paragraph 49,999 A.22 the New Jersey Board held that lieutenants and sergeants were properly included within a bargaining unit with patrolmen. The Board found that the lieutenants and sergeants lacked an authority to effectively hire, fire or discipline patrolmen. In the Matter of Kalamazoo Township and Lodge No. 98 F.O.P., L.L.R. paragraph 49,996.20 (1969) the Board held that although corporals had the authority to suspend patrolmen for breach of department duties this was always reviewed by higher authority; and since corporals were engaged in the exact same work as police patrolmen for the majority of their working time, they did not identify or align themselves with management. Therefore, they were not supervisors and were properly included within the proposed unit with the patrolmen. In accordance with Section 447.009(3)(a), Florida Statutes, no recommendations are submitted. DONE and ENTERED this 30th day of June, 1975. K. N. Ayers Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida
Findings Of Fact William H. Mathias was initially employed by SWFWMD as Director of Employee Relations on January 30, 1980, at pay grade At the time of Petitioner's employment William C. Tatum was Executive Director of SWFWMD. Petitioner has over ten years' experience in personnel relations and security and holds two master's degrees. Due partly to Petitioner's aggressiveness and strong personality, he began exerting influence in the personnel division in pushing the Personnel Department in directions not necessarily approved by Tatum. Tatum wanted to reduce the influence the Personnel Department was having on SWFWMD. On July 26, 1982, Petitioner was transferred to the Field Operations Division with no change in grade. Exhibit 5, which announced this transfer, stated Petitioner was transferred as Assistant Director. On July 28, 1982, a subsequent memorandum, Exhibit 6, was issued by Tatum changing Petitioner's title from Assistant Director to Acting Administrative Assistant. Prior to this transfer Tatum spoke with William F. Sietman, Director of Field Operations, who advised Tatum that he had no need for Petitioner in the Field Operations Division however, Tatum insisted that Petitioner, with his two master's degrees, could make a valuable contribution to SWFWMD if placed in the right niche. Shortly thereafter, Tatum was replaced as Executive Director by Gary W. Kuhl, who was promoted to that position from Assistant Executive Director. The first evaluation report submitted by Sietman on Petitioner, at the end of his first six months on the job, was unsatisfactory. Petitioner appealed to Kuhl, who withdrew his evaluation partly because no job description had been prepared for the position occupied by Petitioner. Kuhl directed the preparation of a job description for the work to be done by Petitioner. When the job description_ was prepared, the position was given the title of Program Management Analyst and the duties to be performed are as contained in Exhibit 1. Principally, Petitioner's function was to do some coordinating of the budgets prepared by the various sections in Field Operations, coordinate planning and negotiate and oversee the building maintenance contract. This position was a staff function as opposed to a line function in which the incumbent would exercise direction, or command, over the section heads. As a staff function his duties were coordination as opposed to direction. Subsequent to his initial unsatisfactory evaluation at the end of his six months probationary period, Petitioner's evaluations improved each evaluating period and at the time of his termination his performance can be described as very good. However, on several occasions complaints about Petitioner giving personnel advice to Respondent's employees regarding overtime, job classifications, and pay grades reached Kuhl. This was the subject of a memorandum addressed to Petitioner and Sietman by Kuhl on May 15, 1984 (Exhibit 7). Petitioner was told to leave personnel matters and advice to the Personnel Department or face disciplinary action. Changes in the functions imposed on Respondent in 1984 necessitated the employment of additional technical people and the establishment of additional technical positions at SWFWMD. The Governing Board indicated to the Executive Director that the budget could not be raised by the amount needed to fund all of these positions and that cuts would have to be made. Kuhl met with the various division heads to require more justification for the proposed new positions and to ascertain which existing positions they could eliminate. This resulted in a proposed list of positions including the librarian, Petitioner's position, and other positions currently unoccupied. As a result of these discussions it was concluded the unfilled positions and the position of Program Management Analyst could be eliminated. By memorandum dated August 17, 1984 (Exhibit 4), Kuhl advised the Governing Board of the proposed reduction in work force. By letter dated August 20, 1984 (Exhibit 15), Kuhl advised Petitioner that the position of Program Management Analyst was eliminated effective immediately and that he was eligible to apply for any other position in SWFWMD for which he was qualified. Petitioner appealed the termination to the Governing Board and, when the Board affirmed his termination, he filed the instant petition. Prior to the transfer of Petitioner to the Field Operations Division, the budget was prepared by each section chief for his section, and the division director coordinated the budgets. While Petitioner was assigned to Field Operations, he performed this budget coordination role previously taken by the director. When Petitioner's position was eliminated, the division reverted to the way it operated before Petitioner's arrival, with little, if any, noticeable effect. The role Petitioner had assumed in supervising the maintenance contract also reverted back to where it was before Petitioner's arrival, again with no noticeable effect.
The Issue Whether Respondent, State of Florida, Department of Health, Duval County Health Department (“the Department”), discriminated against Petitioner, Vadim Troshkin, in employment in violation of the Florida Civil Rights Act of 1992 (“the Act”).
Findings Of Fact The Department is an employer as defined in section 760.02(7), Florida Statutes. In March 2019, Petitioner applied for a position as an advance practice registered nurse with the Department. Petitioner submitted a completed application and was selected for an interview by the Director of Nursing, Angela O’Donnell. Petitioner was one of six candidates interviewed for the position. Ms. O’Donnell was one of three individuals who interviewed Petitioner for the position on March 13, 2019. Petitioner did well during the interview and was ranked four out of the six candidates for the position. Petitioner was not the highest ranking candidate, so he was not offered the position. Neither Ms. O’Donnell nor any of the other interviewers mentioned either Petitioner’s age or his nationality during the interview. Ms. O’Donnell’s scoring sheet does not contain any reference to either Petitioner’s age or national origin.1 Even if Petitioner had been the highest scoring candidate, he would not have automatically been hired for the position. It is the Department’s policy to give a conditional offer to the highest scoring candidate for any position. A conditional offer is contingent upon completion of the candidate’s reference checks and background screening. If a candidate does not have good references or pass the background screening, the candidate will not be hired, even if he or she is the top-scoring candidate. 1 Of the three interviewers, only Ms. O’Donnell’s scoring sheet was introduced into evidence. Therefore, the interview is not the final step in the hiring process.
Recommendation Based on the foregoing Finding of Facts and Conclusions of Law, it is: RECOMMENDED, that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief in Case No. 2019-21589. DONE AND ENTERED this 1st day of September, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Amanda Wright, Inspector Specialist Jacksonville Department of Health Bin A-02 4052 Bald Cypress Way Tallahassee, Florida 32399 Vadim Troshkin Apartment 425 1661 Riverside Avenue Jacksonville, Florida 32204 Amy P. Meyer, Esquire Department of Health MC 30 900 University Boulevard North Jacksonville, Florida 32217 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Respondent, University of West Florida (Respondent or the University), violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Jacqueline R. Pinkard (Petitioner), based upon Petitioner’s race or in retaliation for her participation in protected activity.
Findings Of Fact Respondent is a public university within the Florida State University System. Petitioner was hired by the University in 1998 in the Office of University Budgets (Budget Office) as a Coordinator. In 2004, Petitioner was promoted to the position of Assistant Director of the Budget Office. She received a pay increase simultaneous with the promotion and another pay increase shortly thereafter. She has received several pay increases throughout her employment with the University. From 1998 through June 30, 2014, the Budget Office was a stand-alone department, headed by Valerie Moneyham. In January 2014, Ms. Moneyham was promoted to Assistant Vice President in the Business, Finance, and Facilities Division. Her duties included continued oversight of the Budget Office until June 30, 2014. On July 1, 2014 the Budget Office moved under and became a part of the University’s Financial Services department. There were three employees in the Budget Office: Petitioner, Assistant Director, who is African American/Black; Pam Cadem, Senior Budget Data Analyst, who is Caucasian; and Josie Warren, Coordinator, who is Caucasian (collectively, Budget Office employees). All three Budget Office employees retained their position titles and pay rates upon moving into the Financial Services department. There was another employee in the Budget Office prior to the move named Lourdes Stevens. Ms. Stevens was a Coordinator who began at the University in 2012. Ms. Stevens left the University before the Budget Office became a part of the Financial Services department. The Financial Services department was and is headed by Colleen Asmus, Associate Vice President and University Controller. In her Complaint, Petitioner alleges several bases for alleged race discrimination and retaliation. First, Petitioner alleges that the University discriminated against her based on her race and retaliated against her when Petitioner’s former supervisor, Ms. Valerie Moneyham, issued a “poor” performance evaluation of Petitioner for 2014. Next, Petitioner alleges that her current supervisor, Ms. Colleen Asmus, “accepted Ms. Moneyham’s false and retaliatory evaluation as a means to justifiably deny [Petitioner] an equitable pay increase, position reclassification or promotional opportunity.” And, finally, the Complaint alleges that the University discriminated against Petitioner based on her race when, on December 12, 2014, Ms. Asmus created a position with “very specific ‘preferred’ qualifications . . . as a way to essentially tailor the job to fit a preselected employee or applicant,” who she believed to be “a white male from Financial Services.” The findings of fact pertinent to these allegations are set forth under three separate headings, A. through C., below. Petitioner’s 2014 Performance Evaluation The subject of Petitioner’s first allegation is her performance evaluation covering the period from July 1, 2013, through June 30, 2014 (2014 evaluation). The evaluation cycle for University staff is from July 1 to June 30 each year. Prior to the University’s 2013 evaluations, a different cycle and scoring system was used for performance evaluations. Due to the change in cycling, there were no evaluations for University staff in 2012. The University’s performance evaluation system is electronic-based. The evaluation contains three main parts. The first part is a self-evaluation by the employee. The second part is the supervisor’s evaluation, and the third part is a goal-setting section for the following year. In the second part of the evaluation, supervisors provide numeric ratings on a five-point scale on a series of eight work-related categories, and they also provide narrative feedback on an employee’s strengths and areas for improvement. Since 2013, the numeric scores have been averaged and the resulting number is the employee’s overall evaluation rating. Since 2013, the overall numeric ratings have equated to the following Performance Standards: 1.0 to 1.4 –- “Below” - Not Acceptable 1.5 to 2.4 –- “Below” – Needs Improvement 2.5 to 3.4 –- “Satisfactory” 3.5 to 4.4 -- “Above” 4.5 to 5.0 -- “Superior” It is the University’s standard practice for the supervisor of University staff positions to be the individual who completes those staff position evaluations if he or she was the supervisor for the whole period covered by the evaluation. Ms. Moneyham was the supervisor of record for the Budget Office for the entire period covered by the July 1, 2013, to June 30, 2014, evaluation. Labratta Epting, Human Resources Specialist in the University’s Human Resources department, advised Ms. Moneyham by email dated October 24, 2014, to complete the 2014 performance evaluations for each one of the three Budget Office employees. Ms. Moneyham completed the supervisor’s evaluation portion of the 2014 performance evaluations for all three Budget Office employees because she was their supervisor during the period of time covered by the evaluation. In the electronic performance evaluation system, the evaluations are housed under the name of the current supervisor. In this case, that was Ms. Colleen Asmus, for all three Budget Office employees. For the 2014 evaluation, Ms. Moneyham provided the evaluation information for each of the three Budget Office employees to Ms. Asmus, who cut and pasted the information into the electronic evaluation system. Ms. Asmus completed the future goals section of the evaluation for each of the three Budget Office employees because she was the supervisor beginning on July 1, 2014, and on into the future. In the 2014 evaluation, Ms. Moneyham rated the Budget Office employees as follows: Petitioner received a numeric score of 3.3 and a “Satisfactory” Performance Standard; Ms. Cadem received a numeric score of 3.8 and an “Above” Performance Standard; and Ms. Warren received a numeric score of 3.0 and a “Satisfactory” Performance Standard. In the 2013 evaluation, Ms. Moneyham rated Petitioner with a numeric score of 3.2 and a “Satisfactory” Performance Standard, Ms. Cadem with a numeric score of 3.8 and an “Above” Performance Standard, and Ms. Warren with a numeric score of 3.0 and a “Satisfactory” Performance Standard. In the 2011 evaluation, under the old scoring system, Ms. Moneyham rated Petitioner with a numeric score of 42 and a “Satisfactory” Performance Standard, and Ms. Cadem with a numeric score of 46 and an “Above” Performance Rating. As previously noted, the numeric rating system was changed for all staff evaluations after the 2011 evaluation. Ms. Moneyham increased the numeric score of only one employee from the 2013 to the 2014 evaluation, and that employee was Petitioner. She increased Petitioner’s numeric rating from 3.2 in 2013 to 3.3 in 2014. Petitioner’s Performance Rating was at the “satisfactory” Performance Standard level in 2011, 2013, and 2014. Petitioner testified that Ms. Moneyham’s comments on page 7 of Petitioner’s 2014 performance evaluation under the heading of “Supervisor’s Comments” were not discriminatory and were not retaliatory. Ms. Asmus’ Acceptance of Petitioner’s 2014 Evaluation Ms. Asmus received a copy of the October 24, 2014, email sent by Ms. Epting to Ms. Moneyham directing Ms. Moneyham to complete the 2014 evaluations for Petitioner, Ms. Cadem, and Ms. Warren. When Ms. Asmus met with Petitioner to discuss Petitioner’s 2014 evaluation, Ms. Asmus stated that she believed that they (Petitioner and Ms. Asmus) had started with a clean slate, which began when Ms. Asmus became Petitioner’s supervisor on July 1, 2014. Petitioner’s letter dated December 15, 2014, to the EEOC acknowledges this, quoting Ms. Asmus as saying, “I hope we can move forward with a great working relationship.” No evidence was provided by Petitioner showing that Ms. Asmus used the evaluation scores provided by Ms. Moneyham in the 2014 evaluation to deny Petitioner any benefit of any kind. Denial of Position Reclassification and Promotional Opportunities Interim Promotion In the Complaint, Petitioner alleges that Ms. Asmus used the “poor evaluation” as a means to deny her a position reclassification or a promotional opportunity. At the hearing, Petitioner testified that she should have been made Interim Associate Budget Director, or a similar title, starting when Ms. Moneyham was no longer physically in the same building as the Budget Office employees, which she said was during “Spring 2014.” She also testified that the interim position should have lasted either until Ms. Asmus became the supervisor of the Budget Office employees (July 1, 2014) or, alternatively, until February 2, 2015, when Mr. Djerlek became the supervisor of the Budget Office employees. Ms. Moneyham became Assistant Vice President in January 2014. No evidence was offered stating a more specific date of when Ms. Moneyham moved to a different building than the Budget Office employees. Petitioner did not offer any comparators for this allegation. Petitioner did not offer any evidence that any employee was made Interim Associate Budget Director (or similar title) in this situation. Petitioner admitted on cross-examination that Ms. Moneyham was the supervisor of record for the Budget Office employees until Ms. Asmus became the supervisor for the Budget Office employees. Ms. Rentz, the former University Associate Director for Human Resources, testified that there was no Interim Associate Budget Director or other position into which Petitioner could have been placed because Ms. Moneyham was the supervisor of record over the Budget Office employees until Ms. Asmus became the supervisor of record. That testimony is credited. 2. Reclassification In support of her allegation that she was denied a position reclassification, Petitioner submitted into evidence an email that she sent to her supervisor, Ms. Asmus, on December 11, 2014. In the email, Petitioner asked Ms. Asmus to reclassify all three Budget Office employees (Petitioner, Ms. Cadem, and Ms. Warren) and provide each of them with salary increases. On December 11, 2014, the three Budget Office employees had been under the supervision of Ms. Asmus for approximately five and one-half months. Petitioner’s email further stated that all three employees were well trained. Petitioner, however, provided no evidence either in the email or at the hearing that would reasonably provide a basis for reclassification or promotion of any of the three Budget Office employees. Petitioner did not offer any comparators for this allegation. No evidence was provided showing that there has been a position reclassification or promotion for any of the three Budget Office employees since being moved into the Financial Services department on July 1, 2014. The University provided credible testimony that seniority, or length of time in a position, is not, on its own, a basis for a promotion at the University of West Florida. Denial of Equitable Pay Increase Petitioner also alleged in the Complaint that Ms. Asmus used Ms. Moneyham’s “poor evaluation” as a means to deny Petitioner an equitable pay increase. At the hearing, Petitioner stated that she was denied an equitable pay increase when distributions were made to some staff under a 2013 Employee Pay Equity and Compression Program conducted by the University (Salary Study). Petitioner and the two other employees in the Budget Office did not receive a distribution under the 2013 Salary Study. The University provided credible evidence showing that approximately 25 percent of the staff received increases through the Salary Study, and that Petitioner’s salary was the only salary in the Budget Office that was above the benchmark for receiving an increase. On April 7, 2014, Petitioner filed a discrimination charge with the EEOC claiming that she was denied a distribution from the 2013 Salary Study based on race and retaliation. The EEOC found that the University did not violate discrimination statutes and issued Petitioner a “Right to Sue” letter on September 30, 2014. Petitioner did not file suit in connection with that EEOC discrimination charge. The University has not conducted any equity studies since 2013 and Petitioner has not been excluded from any staff pay increases since 2013. In May 2015, Ms. Asmus asked the Human Resources department to determine whether there was a pay inequity as to Ms. Warren’s salary. Ms. Warren’s position in the Budget Office was “Coordinator” and it remained “Coordinator” when she moved into the Financial Services office. Human Resources reviewed Ms. Warren’s salary against the other Coordinators in the Financial Services department. The Human Resources department determined that Ms. Warren was performing services similar to the Accounting Coordinators in the Financial Services department. The starting salary for an Accounting Coordinator in Financial Services is $45,000. Ms. Warren was earning $32,000 at the time. As a result, in May 2015, Ms. Warren’s salary was increased to $45,000, which is the level of the starting salary for Accounting Coordinators in the Financial Services department. No evidence was offered of a similar increase for Ms. Cadem. Petitioner’s current position is Assistant Director. Before she was promoted to Assistant Director, Petitioner’s position title was Coordinator. The position of Assistant Director is higher in rank than the Coordinator/Accounting Coordinator position occupied by Ms. Warren. Petitioner’s salary is approximately $15,000 higher than Ms. Warren’s salary at the increased level. There is no similar pay inequity in Petitioner’s position as there was with Ms. Warren. Petitioner’s salary is right at the midpoint of the five employees in the Financial Services department at the Assistant Controller/Assistant Director level. Petitioner is earning more than two of the Assistant Controllers and less than two of the Assistant Controllers. Petitioner did not allege or provide any evidence showing that her job duties were more complex than the two Assistant Controllers who have a higher salary than she does. Preferred Qualifications for Associate Controller Position During the fall 2014 semester, Ms. Asmus envisioned an improvement in the efficiency and consistency of the reporting functions carried out by the Financial Services department. She had noticed that there were overlaps and redundancies between the financial reporting area and the budget reporting area. She believed greater consistency in reporting could be achieved if these areas were merged. In November-December 2014, the Financial Services department began the recruitment process for an Associate Controller. The Associate Controller was to be over the reporting areas, which would include financial reporting (production of financial statements), budget reporting, and tax reporting. Florida’s State University System’s (SUS) minimum qualifications for an Associate Controller were posted as the minimum qualifications for the position. They are: Master’s degree in an appropriate area of specialization and four years of appropriate experience; or a Bachelor’s degree in an appropriate area of specialization and six years of appropriate experience. Although the SUS system allows additional requirements be added to the minimum qualifications, none were added in the posting of the Associate Controller position. The preferred qualifications for the position as advertised were: Master’s or Bachelor’s degree must be in an accounting related field. CPA License preferred. Experience with production of financial statements in a higher education setting preferred. Experience with tax accounting in a higher educational setting preferred. Familiarity with budget operations in a higher educational setting preferred. The preferred qualifications were all approved by Human Resources as being job-related before the position announcement was posted. After receiving an applicant pool from the first posting for the Associate Controller position, Human Resources for the University did not “certify” the applicant pool because the percentage of minority applicants was low. The position was posted again and was also advertised again in a publication geared to attract minority applicants. Although additional applicants applied, the percentage of minority applicants decreased. Nevertheless, because it determined that a good faith effort was made to recruit qualified female and minority applicants, Human Resources certified the pool after the second posting. Petitioner pointed out at the hearing that the January 2015 advertisement in the publication geared to attract minority applicants contained an application deadline of December 19, 2014, which was prior to the date of the advertisement. The University’s Associate Director of Human Resources provided credible testimony that the published application deadline was a mistake, and that she was unaware of the error when she certified the pool after the second posting. Ms. Asmus provided credible testimony explaining why each of the preferred qualifications for the Associate Controller position was job related. No contrary evidence as to any of the preferred qualifications was offered by Petitioner. Ms. Asmus advised the three Budget Office employees of the job posting and invited them to apply for the position. Petitioner met the minimum criteria for the position but did not apply for the position. All candidates who met the minimum qualifications for a position would have been considered for the position. Petitioner testified that she did not apply for the position because she did not meet the preferred qualifications. Petitioner explained that in 2012 she had applied for a position as an Executive Assistant in the University’s President’s Office, and she was not selected for the position because she did not have all the preferred qualifications. She said that she did not have event-planning experience. She said that based on that experience in 2012, she did not apply for the Associate Controller position posted in December 2014. Petitioner acknowledged on cross-examination that the Executive Assistant position that she applied for in 2012 was in the President’s Office and that the Financial Services department is in a different division of the University than the President’s Office. There were no limitations in the advertisement that would discourage an individual of any particular race from applying for the position. The advertisement stated on the bottom, “The University of West Florida (UWF) is an Equal Opportunity/Access/Affirmative Action Employer.” Mr. Djerlek was ultimately selected for the Associate Controller position. He is Caucasian and is outside of Petitioner’s protected class. Mr. Djerlek’s qualifications for the position were stronger than Petitioner’s. Mr. Djerlek had experience in all three of the areas that would be under the supervision of the Associate Controller: financial statements/reporting, budget reporting and tax reporting. Mr. Djerlek's background included a great deal of experience with financial statements, tax reporting, and budgeting, along with some budget reporting experience. He is licensed as a Certified Public Accountant. At the final hearing, Petitioner admitted that she did not have experience in two of three areas that the Associate Controller would be supervising: financial statements/reporting and tax reporting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 3rd day of May, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 2016.
The Issue Whether Respondent, Department of Transportation, discriminated against Petitioner, Charles Bean, on the basis of his age and retaliated against him, as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2004).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent is a public agency of the State of Florida. It has offices throughout Florida commensurate with its responsibilities. Petitioner is a Caucasian male. He is a long-time employee of Respondent. By letter of July 1, 2003, Petitioner was dismissed from his position as a technician for insubordination and conduct unbecoming a public employee. Petitioner did not offer any evidence of his actual age or that, other than his stated opinion, his age was the reason he was discharged. He did indicate that his age and experience were mentioned referable to his capacity to teach inexperienced employees and to perform his job. Petitioner did not offer any evidence regarding a replacement for the position from which he was discharged or of any employee who was treated differently than he. Petitioner did not offer any evidence of retaliation. He made a vague statement that he was the victim of retaliation, but did not offer any basis for his opinion. Petitioner refused to complete work assignments in a timely manner. These assignments were appropriate for his job responsibilities. When questioned by his supervisor regarding his failure to complete a particular job responsibility, Petitioner became defiant refusing to provide a written explanation; his angry response to the request included expletives. He then threatened a fellow employee who overheard the exchange between Petitioner and his supervisor. Petitioner's immediate supervisor does not believe age had any bearing on Petitioner's discharge. In addition, he supervises two other employees, aged 53 and 63. Petitioner's conduct violated the published Disciplinary Standards for State of Florida Employees.
Recommendation Based of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief and finding that Petitioner failed to present a prima facie case and, additionally, that Respondent demonstrated, by a preponderance of the evidence, that Petitioner's termination was not based on unlawful discriminatory reasons. DONE AND ENTERED this 9th day of August, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 9th day of August, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 J. Ann Cowles, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Charles Bean 431 Buffalo Street West Melbourne, Florida 32904 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Department of Health and Rehabilitative Services, operated the Joyce Ely Health Clinic in Ruskin, Florida, through the Hillsborough County Public Health Unit. Ms. DeLeon, a Hispanic female of Mexican-American heritage, was employed at the Clinic. Petitioner was on maternity leave in early 1991. When she returned to her job in May, 1991, she found that Teri Hudson, a coworker, had been promoted to the position of Senior Clerical Supervisor, and Petitioner was to work in the position of Clerk Specialist under Ms. Hudson's supervision. At the time of Ms. DeLeon's return, a position of Clerk Typist Specialist, higher in rating than that of Clerk Specialist, was vacant, but this vacancy was frozen because of funding constraints. Ms. DeLeon advised Ms. Hudson that she would be applying for that position when the vacancy was advertised. However, Ms. Hudson requested that Ms. DeLeon not do that and, instead, assume the duties of the Clerk Typist Specialist in an out of title capacity, (OOT), until it could be filled. Ms. Hudson indicated to Ms. DeLeon that she was anticipating a vacancy for a higher level Senior Clerk position to open when the incumbent, Ms. Snead, retired, and that she would not consider Petitioner for that position if she applied for and secured the Clerk Typist Specialist position in title and full time. Relying on Ms. Hudson's comments, Ms. DeLeon did not apply for the Clerk Typist Specialist position but, instead, filled that job in OOT status from May, 1991 until July 19, 1991. On that date, Ms. Hudson appointed a white female, Cindy Morrow, to fill the Clerk Typist Specialist position which Ms. DeLeon wanted but for which she was discouraged from applying. Ms. Hudson admits Ms. Morrow was the only person she had hired at the Clinic. However, Ms. Morrow did not stay with the position. Toward the end of 1991, she ceased coming to work and, counter to the wishes of Ms. Hudson, was determined to have abandoned her position and was terminated. When this happened, Ms. Hudson again asked Petitioner to temporarily assume the Clerk Typist Specialist duties, which Ms. DeLeon did, and on January 15, 1992, after having been filling the position for approximately 20 days, applied for OOT pay as provided for in the Department's Operating Procedure 60-3 and in Article 21 of the collective bargaining agreement. In response, Ms. Hudson advised Petitioner that due to budgetary constraints, she could not receive the OOT pay, a representation which Ms. DeLeon accepted. When, however, she began to see a pattern in Ms. Hudson's actions, she concluded that she was being misled. This feeling was confirmed that same month when Ms. DeLeon learned that Respondent was reassigning two employees from other facilities to the clinic to fill two Senior Clerk vacancies which existed due to the retirement of Jewell Snead and the promotion of Gisselle Roque, who had been processing the Presumptive Eligibility for Pregnant Women (PEPW) applications for the clinic. Ms. DeLeon had assumed that the adversely affected employees mentioned above would be given these vacant positions. Ms. Hudson told her, however, that she had been authorized by the Department's personnel office to utilize Ms. DeLeon in one of the vacancies in an out of title status until her position could be upgraded and reclassified. Ms. Hudson verified this with the Clinic Administrator, Mr. Shewmaker, who indicated he would upgrade/reclassify Ms. DeLeon's position as soon as possible. In the interim, that same month, Petitioner applied for a partial promotion into the vacant WIC cashier position rather than waiting for the Senior Clerk position she felt she had been promised. She did this because she believed that Ms. Hudson had misled her twice before and she was not satisfied she would get that promotion. During her February, 1992 interview with Mr. Haese, the WIC hiring official, she was led to believe he felt she was the best qualified applicant and wanted her for the position. It appears, however, that Mr. Haese was not given the discretion to hire the applicant he wanted. Somehow, Petitioner's rating was lowered to reflect that she had achieved a lower score than the individual who was ultimately picked for the position, Ms. Meeker. Ms. Meeker, who all involved thought was a white female, was actually Hispanic and married to a white non- Hispanic man. The racial designation of "W" which appeared by her name on the original rating list, (Form 900), in October, 1992, was corrected to reflect "H" on the final Form 900. On or about March 12,1992, Ms. DeLeon was advised by Ms. Hudson that she would not be upgraded or reclassified into a Senior Clerk position even though the PEPW work she was doing was normally a Senior Clerk position. This was contrary to what she had been promised previously by both Ms. Hudson and Mr. Shewmaker. However, because the accomplishment of those duties was essential to the operation of the facility, Ms. Hudson put Ms. DeLeon in the position out of title and assigned her to the Senior Clerk position, temporarily, on March 13, 1992. According to the personnel and pay rules, the occupant of an out of title position, performing those duties for more than 21 days, would be entitled to OOT pay. Among the individuals under Ms. Hudson's supervision at the Ely Clinic was Marion Schweda. Ms. Schweda was the only white female in that category. Now deceased, Ms. Schweda had a well recognized problem with alcohol and evidenced a mean, bigoted approach toward her minority coworkers. Among other things, she repeatedly accused her minority coworkers of mistreating her in reports to Ms. Hudson. Notwithstanding the accepted fact that Ms. Schweda frequently was intoxicated while on duty at the clinic, and frequently uttered racially derogatory comments to and about her minority coworkers, Ms. Hudson never took any apparent corrective or disciplinary action against her. Instead, Ms. Hudson often chastised the minority employees on the basis of Ms. Schweda's complaints. On April 28, 1992, Ms. Schweda accused Ms. DeLeon of leaving the clinic safe unlocked. As a result of this allegation, Ms. Hudson conducted a cursory investigation into the situation and subsequently issued Ms. DeLeon a reprimand for the incident. Ms. DeLeon thereafter filed a grievance as a result of the discipline. Ms. Hudson objected to any modification of the grievance, but ultimately the reprimand was reduced to a documented counseling, which, though less severe than a reprimand, nonetheless itself constitutes discipline. Though not dispositive of any issue currently under consideration, it should be noted that evidence produced at the instant hearing regarding the allegation of misconduct against Ms. DeLeon does not establish her guilt of the offense alleged. This "discipline" was the first disciplinary action taken against Ms. DeLeon in the more than twelve years she had been employed by the State. She has had none since leaving Ms. Hudson's supervision. In any event, Ms. DeLeon continued to work out-of -title in the PEPW Senior Clerk position. On April 13, 1992, Ms. Hudson assigned her the additional duties of county screening in addition to her other duties. Just about that same time, Petitioner again requested OOT pay. The personnel manager, Ms. Freeman, indicated to Petitioner and to the EEO investigator, Ms. Coton, as well as testifying at hearing that she was prepared to give Ms. DeLeon OOT pay as soon as she was given a starting date by Ms. Hudson. This date should have been March 13, 1992. Ms. DeLeon performed PEPW Senior Clerk duties and the additional public assistance duties without interruption until June 17, 1992. On that date she was given a memo from Ms. Hudson advising her that effective June 22, 1992, Petitioner was being relieved of the PEPW OOT Senior Clerk position and returned to the Clerk Specialist position she had previously occupied. Ms. Hudson insisted this action was not to be viewed as discipline or punishment, but Petitioner saw it as such. She believed she had done a quality job in the PEPW slot, and there is no evidence to indicate she had not. However, she had not received any additional OOT pay for her period of service in that capacity since March 13, 1992, though she had expected it. Further, Ms. Schweda was assigned to the PEPW position. Though she had occupied the PEPW slot for the required period, she was denied the extra pay on the evaluation of Ms. Hudson whose personal audit of her performance concluded Petitioner had not performed the majority of the PEPW duties for the required period so as to merit OOT pay. Petitioner believed this was a contrived excuse because Hudson had never articulated that conclusion to her. Ms. Hudson also conducted an audit? of Petitioner's work production at PEPW which she showed to Mr. Shewmaker to demonstrate that Petitioner had not performed sufficiently to earn OOT pay. Evidence introduced at hearing indicates otherwise, however. Hudson did not inform either Petitioner or the union representative that she had prepared the "audit". Neither did she show it to Ms. Coton while the latter was conducting the EEO investigation. Only when Ms. Hudson was deposed as a part of this action, some two years later, did Ms. DeLeon find out about the audit and the other "notes" Ms. Hudson had kept unofficially on her subordinates and had forwarded to the personnel office. When, through her attorney, she asked to see them, as they pertained to her, she was advised by personnel they could not be located. The personnel officer indicated that since they were not official, they had most likely been destroyed. The notes in question were subsequently discovered in the supervisory file which Ms. Hudson, and now Mr. Riggs, kept on Petitioner. Mr. Riggs freely allowed Petitioner to look through the file and they were there. Petitioner copied them. A review of the "audit" documents prepared by Ms. Hudson reveals the most minimal of handwritten notes which are, by themselves, insufficient to support her claim that Petitioner did not work the majority of her time in PEPW in Senior Clerk duties. Ms. Hudson's testimony to that effect and to that no funds were available, at hearing, lent little credence to her claim. Petitioner was upset by the denial of pay to her but was also chagrined to see that Ms. Schweda was given the PEPW slot and retroactive OOT pay because she sincerely believed that an unbiased comparison of her performance with that of Ms. Schweda would show that Ms. Schweda's performance warranted neither the assignment nor the OOT pay she received therefor. Shortly after Ms. DeLeon was relieved of the PEPW duties, she received another "documented oral counselling", dated June 22, 1992, from Ms. Hudson alleging excessive absence. Petitioner contested this action on the basis that all of her time off had been approved by Ms. Hudson who was aware of the need for the time off and the legitimacy thereof which related to Petitioner's young family and pregnancy. Notwithstanding that Petitioner's absences were normally either early or late in the work day, and were not shown to have adversely impacted the operation of the clinic in general or Petitioner's section in particular, the action remained in her file. Shortly thereafter, on June 25, 1992, Ms. Hudson issued an "oral reprimand" to Ms. DeLeon for alleged "disruptive conduct." The incident in question occurred when Ms. Schweda reportedly stated to Ms. Hudson that she was "sick of all the shit from the niggers and spics." Though this comment was overheard by the clinic's chief nurse, Ms. Bartholomew, no corrective action was taken by Ms. Hudson. In addition, there was some evidence that Ms. Hudson had made ethnic jokes or comments in the clinic break room. Though she denied it, Ms. Hudson's testimony is barely credible. Throughout her testimony, she repeatedly claimed to be unable to remember any of the incidents which, if established, would place her in an unfavorable light. In any event, when Ms. DeLeon spoke with Ms. Hudson about Ms. Schweda's offensive statement, and Ms. Hudson angrily demurred, Ms. Delon walked away from her, notwithstanding Ms. Hudson's demand that she stay. This was the "disruptive conduct" which formed the basis for the disciplinary action. In addition to the allegation of inappropriate ethnic jokes and comments by both Ms. Hudson and Ms. Schweda, there is some evidence in the form of the testimony of Ms. Baham, that Ms. Hudson often falsely accused Petitioner of "things" and threatened non-white employees with discipline if they did not treat Ms. Schweda as Ms. Hudson wanted. This was offensive to Ms. Baham since, in her opinion, it was Schweda who needed counselling on the treatment of coworkers. Sometime later, Ms. Hudson was replaced as supervisor by Ed Riggs. On one occasion, Ms. Schweda improperly interrupted a meeting being conducted by Mr. Riggs which prompted him to recommend she be disciplined. The discipline form was executed by Mr. Riggs, and the personnel officer recalls having seen something about it, but the document has disappeared from Ms. Schweda's official and unofficial personnel file. Petitioner urges that this is evidence of disparate treatment. Taken by itself, that does not follow, but if taken in concert with other similar incidents, it might. Among such incidents could be included a conversation between Ms. Schweda and a Ms. McCalla in which Ms. Schweda referred to Ms. McCalla as "a black SOB." Ms. McCalla retaliated by slapping Ms. Schweda but whereas Ms. McCalla was administered written discipline, Ms. Schweda received no discipline at all, notwithstanding Ms. Hudson's representation that she would. Examination of Ms. Schweda's personnel file reveals no disciplinary action at any time during her term of employment at the clinic. Petitioner filed a charge of discrimination with the EEOC and the Commission on July 13, 1992. This complaint was referred to the Department's Office of Civil Rights for investigation. Millie Coton, a long time employee and member of the District's EEO Committee, was appointed to conduct the investigation. On or about August 18, 1992, when it became known that an investigation was forthcoming, Ms. Hudson called two of her subordinates, Ms. Baham and Ms. McCalla, into her office and, according to Ms. Baham, advised them they did not have to answer any questions asked by the investigator. Neither employee indicates Ms. Hudson told them what to say or not to say. Ms. Coton conducted her investigation into Petitioner's allegations and submitted her report and recommendation to her supervisor, the district EEO Coordinator, Mr. McNair, in mid-October, 1992. The conclusions drawn by Ms. Coton were that reasonable cause existed to believe Teri Hudson had created an environment of discrimination toward minority personnel, especially the Petitioner. Ms. Coton's analyses, findings and recommendation were approved by Mr. McNair, by the District Legal Counsel, and by the District VI Administrator. The investigation, the report and recommendations, and the coordination sheet indicating agreement was forwarded to the Department's Office of Civil Rights in Tallahassee where it was forwarded to Terry Runkle, a subordinate of Melvin Herring, the Department's Assistant Staff director for Civil Rights. Mr. Runkle contacted Moira Freeman, the local personnel manager, requesting additional information concerning the investigation. No inquiry was made of Petitioner, Ms. Hudson, or anyone else with firsthand knowledge of the allegations nor, inconceivably, was any contact or request for further investigation made with or to Ms. Coton, notwithstanding the requirement therefor in HRSM 220-1. Relying on the information reported in Ms. Freeman's reply to Mr. Runkle's inquiry, the Office of Civil Rights disagreed with Ms. Coton's approved report and recommendation and, as is its responsibility, recommended only a finding of "No Cause" to the Department's Deputy Secretary for Administration, (DSA), for determination. The DSA, Mr. Moody, on November 16, 1992 approved the determination of "No Cause" and returned the file to the Office of Civil Rights for preparation of the agency position statement. The Department's formal Position Statement, amended only as to style and format, was thereafter forwarded to the Commission. The Commission's subsequent determination of "No Cause", when transmitted to Petitioner, resulted in the filing of her Petition for Relief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered by the Commission, finding that cause exists to believe that an unlawful employment practice has occurred in (1) the failure to promote Ms. DeLeon to the position of Clerk Specialist; (2) the failure to pay her out of title pay during the period she worked as Clerk Typist Specialist in the PEPW section; (3) the failure to promote her to the position of WIC cashier; (4) the administration of unjustified discipline for the unproven offense of leaving the safe open, and (5) the failure to take appropriate corrective action against Ms. Schweda for the racially bigoted remarks and slurs she made, while disciplining and chastising Petitioner and other minority employees who did not treat Ms. Schweda as the supervisor felt she should be treated. No recommendation is made as to affirmative relief as insufficient evidence was introduced to do the calculations in support of such relief. RECOMMENDED this 30th day of March, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-5811 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: & 2. Accepted. Accepted and incorporated herein. - 8. Accepted and incorporated herein. 9. & 10. Accepted and incorporated herein. 11. & 12. Accepted and incorporated herein. 13. & 14. Accepted and incorporated herein. 15. - 18. Accepted and incorporated herein. Accepted and incorporated as to the fact that the form was changed. & 21. Accepted and incorporated herein. 22. - 25. Accepted and incorporated herein. Accepted and incorporated herein. & 28. Accepted. 29. - 32. Accepted. 33. Accepted. 34. & 35. Accepted and incorporated herein. 36. - 38. Accepted and incorporated herein. 39. & 40. Accepted and incorporated herein. 41. & 42. Accepted. 43. First sentence accepted and incorporated herein. Balance speculation and argument by Petitioner. 44. Accepted and incorporated herein. 45. Accepted. 46. - 49. Accepted. 50. Accepted. 51. Not a Finding of Fact but a restatement of testimony. 52. & 53. Accepted. 54. - 56. Argument. 57. Restatement of testimony. 58. Accepted and incorporated herein. 59. & 60. Accepted. 61. & 62. Substance accepted. Characterization of testimony rejected as immaterial. 63. Accepted and incorporated herein. 64. Rejected as contra to the evidence. 65. Pendency of disciplinary action accepted. Motivation unprov 66. - 68. Accepted and incorporated herein. 69. Not a proper Finding of Fact but more a legal discussion on the standard of evidence. 70. - 72. Accepted and incorporated herein. 73. Not a proper Finding of Fact. 74. & 75. Accepted. 76. & 77. A restatement of testimony. Accepted. Rejected as a position statement and argument, not a Finding of Fact. & 81. A restatement of witness testimony. 82. & 83. Accepted. A restatement of witness testimony. & 86. Accepted. FOR THE RESPONDENT: None submitted. COPIES FURNISHED: Robert A. Miles, Esquire 7402 North 56th Street Suite 475 Tampa, Florida 33617 Peter Fleitman, Esquire Office of the Attorney General The Capitol Tallahassee, Florida 32399-1050 Sharon Moultry Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-4149
Findings Of Fact Respondent, Colin Spruce, was issued a certified residential contractor's license, No. CR-COI5679, in an active status, in June, 1930, as an individual. This license was renewed, as an individual, for the 1981-83 licensing period, which expired on June 30, 1983. This license has not been renewed and is in a delinquent status. Respondent at no time qualified Angle Enterprises, Inc., to engage in contracting in Florida. James D. Roland and his wife own nine low-income family apartment buildings in Melbourne. On November 2, 1981, the Rolands signed a contract with Respondent to rehabilitate these apartments with funds provided on loan from the federal government. Respondent signed the contract on November 3, 1981, and began work on November 9, 1981. He fully completed one of the nine buildings and partially completed one other. He also did some work on the roofs of all. On or about January 13, 1982, Respondent called Mr. Roland's home and left word he would be out of town for several days. He never returned to work on the project. The work was 35 percent complete when Respondent abandoned the project. Later, Mr. Roland completed the project himself at an overrun of approximately $2,500 above the contract price. Aside from one minor modification which cost an additional $261, there were no changes to the plans and specifications when Roland took over. It was only later that Roland got word that the subcontractors had not been paid. He paid off those who filed liens against his property. During the course of his work on the Rolands' property, Respondent, in his own name or as Angle Enterprises, Inc., entered into agreements with several subcontractors, including Scotty's, Berger Roofing, Melbourne Insulation, City Gas Co., and Jackson Electric, all of which provided either materials or services, or both, for this project. Scotty's provided materials valued at $16,513.24, but was paid only $6,751.46, leaving an unpaid balance of $9,761.78 for which the company filed a lien against the Rolands' property. This sum, left unpaid by Respondent, was subsequently paid by Mr. Roland. Berger Roofing, Inc., furnished labor and materials for the porch roofs on each of the project's buildings during late November and early December, 1981, and was due $750 from Respondent for this job. Respondent did not ever pay, and Berger also filed a lien against the property. This lien was also satisfied through payment by Mr. Roland. Melbourne Insulation furnished labor and materials to the project through contract with Respondent for approximately $2,000 of which only one-half was paid by Respondent. The balance has not been paid, though no lien was filed here because of an oversight by claimant's lawyer. City Gas Company is still owed $1,524.75 of the $4,784.33 it billed Respondent for labor and materials (heaters) it provided for the project for a contract it had with Respondent dated December 1, 1981. No lien was filed for the unpaid amount here, either. Jackson Electric performed electrical work on the project which included removing plates, switches, and fixtures from one of the buildings in November, 1981, based on an agreement with Respondent. The contractor was about to start work on a second building in the project, but due to the fact that Respondent was a slow payer on previous jobs done for him, the additional work was not started and Jackson was never paid for the work done. Respondent also failed to pay the wages he owed to several of his employees, including David Jones and Carl Cramer. Jones worked for Angle Enterprises, the company owned by Respondent and under which he did business from November, 1981, to January, 1982, in a job on Roland's buildings which involved stripping the roofs off the buildings and painting. He was not paid for his final week of work, which ended on January 15, 1982. He is owed for 32 hours work at $5.75 per hour. He considered himself a close personal friend of Respondent who gave no advance notice that he would not pay his employees. Cramer and a third employee (Mr. Kibben) also were not paid their earned wages by Respondent. He was working at the time in question as a carpenter/foreman for Respondent. On the last morning of work, Friday, January 15, 1982, Respondent told him that the accountant would come by and pay him and the other men that afternoon. Respondent then left and was not seen again, nor was the accountant or the wages. Cramer was due 32 hours pay at $7 per hour. During the time he was working on this project, Respondent submitted four draw requests and was paid on three. These draws were submitted to Mr. Grinstead at the Community Development Office for approval and were approved when Grinstead checked to see that the approximate work was done. Mr. Grinstead was at the project site almost every day. The last time he saw Respondent there was on or about January 15, 1982. As of that date, the work was not completed, but Respondent did not go back. Mr. Grinstead approved three draws. These were: December 10, 1981, for $13,000 payable to Roland, Respondent, and Scotty's; December 21, 1981, for 54,000, payable to Respondent; and January 8, 1982, for $13,000 payable to Roland, Respondent, and Scotty's. A fourth draw request on December 12, 1981, for $2,400 was denied by Y. Grinstead because sufficient additional work was not done to justify it. All three approved checks were cashed. As to the check for $13,000 dated January 8, 1982, Roland signed it and Respondent took it to Scotty's, where he convinced the credit manager to endorse it in exchange for his, Respondent's (Angle Enterprises'), check dated January 11, 1982, in the amount of $7,446.61. Thereafter, the same day, Respondent signed a stop-payment order at his bank on which that check was drawn, listing as his reason for that action a corporate reorganization. Payment was stopped, and Scotty's was not paid by Respondent. On the basis of Respondent's conduct regarding the check, an information charging him with altering a worthless check and grand theft (second degree) was filed in the Circuit Court in Brevard County, Florida, on June 1, 1982. Thereafter, on November 30, 1982, Respondent entered a plea of guilty to both offenses and was placed on probation for five years. Conditions of probation included full restitution of the $13,000 and a prohibition from engaging in construction or repair services without permission of the court.
Recommendation Based on the foregoing, it is, therefore: RECOMMENDED: That Respondent's certified residential contractor's license be revoked. RECOMMENDED in Tallahassee this 5th day of April, 1984. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1984. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Colin Spruce 1001 SW Conover Avenue Palm Bay, Florida 32907 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues are whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her disability and by retaliating against her, and if so, what, if any, relief is Petitioner entitled to receive.
Findings Of Fact Petitioner is Respondent's former employee who began working for Respondent in 1993. Petitioner was most recently assigned to the warehouse in eastern Jacksonville, Florida, where she worked from October 2000 until September 2007. When she first transferred to the warehouse, Petitioner worked as the Return-to-Vendor (“RTV”) Clerk. As the RTV Clerk, Petitioner was responsible for shipping out returned merchandise to vendors and shipping salvaged items to the salvage companies. In 2004, Petitioner transferred to the Receiving Clerk position. Petitioner remained in the Receiving Clerk position until September 19, 2007, when she began a medical leave of absence. Jason Zook became the manager of the warehouse in May 2005. As the Warehouse Manager, Mr. Zook is responsible for overseeing the entire warehouse, including the Receiving Department. Mr. Zook is familiar with the requirements of the Receiving Clerk position because he previously worked in that position at another warehouse. Michael Sinanian is one of the Assistant Warehouse Managers. Mr. Sinanian transferred to the warehouse as an Assistant Warehouse Manager in 2002. Prior to becoming an Assistant Warehouse Manager, Mr. Sinanian worked in the Receiving Department at other warehouses for a little over two and a half years. During that time, Mr. Sinanian worked as a Receiving Manager, a Receiving Supervisor, an RTV Clerk, and a Receiving Clerk. The Receiving Department is located at the back of the warehouse. The warehouse is approximately the length of a football field from front to back. At all times material here, the Receiving Department at the warehouse had four positions: Receiving Manager, Receiving Clerk, Receiving Secretary, and Forklift Driver. In 2007, Deborah Lenox was the Receiving Manager, an employee named Sonya was the Receiving Secretary, Petitioner was the Receiving Clerk, and an employee named Valdean was the Forklift Driver. The Receiving Secretary and the Receiving Clerk have different job responsibilities. The Receiving Secretary is responsible for answering the phone, making vendor appointments, logging the appointments, dealing with paperwork, creating and printing out receiving tags, and logging shipment information into Respondent's computer system. The Receiving Clerk is responsible for counting and checking merchandise against freight bills, opening boxes and cartons with a box knife to verify and count the product, stacking bed-loaded merchandise or merchandise from damaged or unacceptable pallets onto approved pallets, separating mixed items from pallets for checking, wrapping pallets with plastic wrap in preparation for movement onto the warehouse floor, loading merchandise and emptying pallets onto trucks using a manual pallet jack or hand cart, and cleaning and clearing the receiving dock of any debris and trip hazards. Each of these essential job functions requires standing, which is consistent with the job analysis for this position. Respondent has written job analyses, which identify the essential functions of each job and are used to assist the Company, the employee, and the employee’s doctor in determining if the employee can perform the essential functions of his/her job with or without reasonable accommodations. Respondent does not remove or eliminate essential job functions, but will sometimes modify the manner in which the function is to be completed. Respondent will not displace another employee from his position in order to accommodate a disabled employee. A pallet of merchandise can be as much as 60 inches high. A typical pallet coming in the warehouse is a 60-inch cube. An electric pallet jack is a double pallet jack and is approximately 18 feet long. In order to operate an electric pallet jack, an employee has to stand and lean in the direction that she wants the machine to go and turn the handle. There is no seat on an electric pallet jack. Petitioner’s original foot condition was due to osteomyelitis, an infection of the bone. Between 1998 and 1999, Petitioner had four surgeries to address her foot condition. A surgeon placed an artificial plastic bone in Petitioner's foot in July 1999. In September 1999, Petitioner returned to work with medical restrictions that prevented her from standing for long periods of time and from lifting more than 25 or 35 pounds. At some point thereafter, while Petitioner was working at one of Respondent’s warehouses in Memphis, Tennessee, her podiatrist changed her restrictions to add limitations against cashiering, stocking, and inventory. Petitioner understood that the reason for these additional restrictions was that she was not able to do these tasks to the extent they required her to stand for a prolonged period of time. Petitioner’s medical notes stated that she was able to use her discretion as to her limitations, which Petitioner understood to mean that she could sit and rest her foot as needed. Each of these restrictions was permanent. Mr. Zook, Ms. Lenox, and Mr. Sinanian were all aware that Petitioner had medical restrictions relating to her foot condition that prevented her from standing for prolonged periods of time. They were aware that Respondent had agreed to allow Petitioner to sit down when she felt it was necessary, without first having to ask for permission. Despite her restrictions, Petitioner is able to ride her bike, go the grocery store, and work out at the gym. During the relevant time period, Petitioner worked out at the gym approximately four days a week. Her work-out routine included warming up on an elliptical machine for approximately 15-to-20 minutes or walking approximately one mile on the treadmill and using a leg press machine. Respondent performs inventory twice a year. It takes an inventory at all warehouses in February and August. The inventory process begins on Friday night and continues until the following Wednesday. The back-stock is counted on Friday night after closing and the stock on the sales floor is counted on Saturday night after closing. The post- audit process begins on Sunday morning before the warehouse opens to its members and continues on Monday morning. The Saturday night inventory count is more labor- intensive and is considered “all hands on deck.” The Saturday night inventory requires the staff to count approximately $9 million worth of inventory during roughly a five-hour period. On Saturday, Respondent assigns two employees to count the items in each aisle at the same time. The employees double- check each other’s counts. If there is a discrepancy between the employees’ counts, both will recount the items until their counts agree. If there are discrepancies after the Saturday counts between the physical counts and the computer records, the items are recounted during the Sunday post-audit. If variances still remain after the three counts, then the variances are researched during the Monday post-audit. For the Monday post-audit, Respondent only focuses on the larger-quantity, higher-dollar discrepancies. When researching the discrepancies from the variance reports, employees have to perform the following tasks: (a) count items on the floor or up in the steel racks; (b) verify bin tags; (c) research billing, shipment, and return-to-vendor records on Respondent’s computer system; and (d) check the receiving paperwork in an effort to locate and correct the source of the discrepancy. Some items will have been sold between the Saturday night count and the Monday post-audit process. Therefore, the Monday post-audit team also may have to research the sales history on a computer and back out the Sunday sales from the total count. The variance reports reflect the aisle where the item is located, the item count from the inventory count, the computer system count, and the amount of the variance. Employees are typically assigned to work in one department of the warehouse, which may require them to walk from aisle to aisle within that department. In order to assist the Monday post-audit team, the team is permitted to use computers throughout the warehouse. Employees can sit down at the computers when they are researching the variances in item counts. It can take anywhere from 15-to-30 minutes to research one item. The duties involved in the inventory post-audit process are similar to the job duties of the Receiving Clerk position. However, the post-audit does not require as much standing and is less physically demanding because the focus during post-audit is on researching the sources of the variances, rather than simply receiving, counting, and checking- in shipments. In selecting employees to work on the Monday post- audit team, Respondent prefers to schedule people who are familiar with Respondent’s return-to-vendor and receiving processes. Respondent also selects employees who are knowledgeable about Respondent’s AS-400 computer system. In February 2007, Petitioner worked the Saturday night inventory. During that time, she counted the bread then worked at the control desk. Petitioner's job at the control desk was to key-in inventory count sheets into Respondent’s computer system. Petitioner did not view this assignment as inconsistent with her restrictions against working inventory because she was seated for most of the time. In August 2007, Mr. Sinanian was responsible for the post-audit processes, including the scheduling of employees to work post-audit. Due to the requirements of post-audit, Mr. Sinanian selected people who, like Petitioner, were familiar with Respondent’s AS-400 computer system. Approximately 20 employees worked during the Monday post-audit. Mr. Sinanian and Ms. Lenox knew that Petitioner could use her discretion to sit down whenever she felt it was necessary. They had no reason to believe that the post-audit process was inconsistent with Petitioner’s medical restrictions. Therefore, she was selected to work the Monday post-audit. On Saturday, August 25, 2007, Petitioner was again assigned to count bread and then assist with keying inventory count sheets into the system. Petitioner was able to sit down while she was working at the control desk keying the inventory count sheets. Petitioner did not consider her Saturday assignments inconsistent with her restrictions. Petitioner did not work or perform any inventory or post-audit, inventory-related duties on Sunday, August 26, 2007. On Monday, August 27, 2007, the post-audit process lasted from approximately 5:00 a.m. until 10:00 a.m. Petitioner’s shift began at 5:00 a.m. After Petitioner clocked in, she reported to the control desk, where Mr. Sinanian assigned her to check variances for approximately 6 items in Department 14, the sundries department. The sundries department runs along the back right side of the building near the Receiving Department. The sundries department includes items like paper towels, cleaning chemicals, laundry detergent, water, juice, and soda. Petitioner was assigned to research variances between the physical counts and the computer system’s counts for Swiffers, dog bones, dog beds, water, soda, and paper towels. During the August 2007 post-audit process there were at least 18 computers for the employees to use. The computers were located in the Receiving Department, the front office, at the membership desk, and at the podium on the front-end. Employees were free to use any available computer and were able to sit down at most of the computers while researching items. Petitioner never had to wait to use a computer. Petitioner went to whichever computer was closest to her at the time to verify items. After she finished researching all of the items on her variance sheet, Petitioner, like all of the other employees who worked post-audit, met with Mr. Sinanian at the control desk at the front of the store to explain her findings. There was a chair at the control desk for Petitioner to sit in while meeting with Sinanian. The process of meeting with Mr. Sinanian took anywhere from 10-to-30 minutes. Other than discussing her assignment for the day and the post-audit research results, Mr. Sinanian did not have any other discussions with Petitioner on August 27, 2007. Petitioner was able to use her discretion to sit down during post-audit. She was never told that she could not sit down nor was she reprimanded for sitting down. Petitioner admits that she used her discretion to sit down at least twice during post-audit and to kneel down a couple of times. Petitioner also took a 15-minute break during the post-audit process, during which she sat down. After Petitioner finished working post-audit at approximately 10:00 a.m. on August 27, 2007, she returned to the Receiving Department, but left shortly thereafter to take her lunch break. Petitioner’s lunch break lasted for approximately a half-hour. Petitioner walked from the back of the warehouse, where the Receiving Department is located, to the front of the warehouse, where the break room is located, to take her lunch and walked all the way back after the end of her break to return to work. After returning from lunch, Petitioner began working on the UPS shipment. It was a busy day in the Receiving Department, as the UPS shipment had arrived with approximately 72 packages stacked on one pallet that was taller than Petitioner. Because Petitioner felt unable to stand, she could not check in the entire UPS shipment. As a result, Petitioner took it upon herself to take the UPS invoices and input the invoices into Respondent’s computer system, which is one of the Receiving Secretary’s job responsibilities. At some point thereafter, Ms. Lenox asked Petitioner why she was logging in items into Respondent’s computer system, rather than receiving the UPS shipment. Petitioner told Ms. Lenox that her foot was hurting and that she could not stand. Ms. Lenox told Petitioner to take her break and, when she returned from break, they would see how Petitioner’s foot was feeling. Petitioner walked to the front of the warehouse, where she took her second 15-minute break in the break room. Petitioner was able to sit with her foot up during her break. After returning from her break, Petitioner reported to the Receiving Department and told Ms. Lenox that she did not feel she could not stand any longer that day. Petitioner asked if there was something she could do other than her receiving duties. Ms. Lenox told Petitioner that if she could not stand, then Ms. Lenox did not have any more work for her and told her that she should go home. Accordingly, Petitioner went home approximately one hour before her shift ended. Petitioner reported to work the following day, Tuesday, August 28, 2007, at 5:00 a.m. and worked her entire shift. At some point after her shift started that day, Petitioner told Mr. Sinanian that Ms. Lenox would not allow her to take a break during post-audit. Petitioner also told Mr. Sinanian that her foot was swollen and hurting. She took off her shoe to show him her foot. Mr. Sinanian did not see anything unusual about Petitioner’s foot. He did not see any swelling, graying, or a red bump. From the conversation with Petitioner, Mr. Sinanian did not understand that her foot was hurting due to a new injury. Therefore, Mr. Sinanian did not fill out an incident report. Petitioner’s and Mr. Sinanian’s conversation lasted approximately two minutes. At some point after speaking with Petitioner, Mr. Sinanian asked Ms. Lenox if, at any point during post-audit, she told Petitioner that Petitioner could not take a break. Ms. Lenox denied Petitioner’s allegation. Mr. Sinanian had no reason to doubt Ms. Lenox. Petitioner continued to work her job as Receiving Clerk after August 28, 2007. She continued to use her discretion to rest her foot on an as-needed basis. When possible she would sit in a chair to work. She used the electric pallet, letting her foot hang off the platform. Petitioner waited three weeks to seek medical treatment from her podiatrist in West Palm Beach, Florida. She finally saw her doctor on Monday, September 17, 2007. At her appointment, Petitioner’s podiatrist gave her a note that stated, “DUE TO ARTHRITIC CONDITION, CYNTHIA IS UNABLE TO STAND FOR LONG PERIODS OF TIME AND IT IS MEDICALLY NECESSARY FOR HER TO BE OFF HER FOOT FOR 3 WEEKS. DUE TO THE FLARE UP.” Petitioner understood that her podiatrist wanted her to stay off her foot for a few weeks and to be in a sedentary position during that time. Petitioner also understood that these temporary restrictions were more limiting than her prior permanent restrictions. Petitioner reported to work on September 18, 2007, and told Ms. Lenox that her doctor did not want her standing. Ms. Lenox told Petitioner that they would need to speak with Mr. Zook about her restrictions when he arrived at work that day. In the meantime, Ms. Lenox permitted Petitioner to sit down and work on summary sheets. After returning from lunch, Petitioner met with Mr. Zook about her new temporary restrictions. The meeting lasted about an hour or more. Based on Mr. Zook’s prior experience working as a Receiving Clerk, his understanding of the essential job functions of that position, and Petitioner’s podiatrist’s statement that she needed to be off her foot for three weeks, he did not believe that Petitioner could perform the essential functions of that position without violating her doctor’s restrictions. Mr. Zook, nevertheless, asked Petitioner how she thought she could do her job from a seated position. Petitioner did not have any suggestions. There were no available sedentary positions in the warehouse at that time that could have accommodated Petitioner’s no-standing restrictions. As a result, Mr. Zook explained to Petitioner that based on her doctor’s restrictions, which required her to be in a sedentary position, he did not have any work for her at that time. Mr. Zook did not believe that Petitioner’s temporary no-standing restrictions prevented her from working in any capacity. Mr. Zook explained to Petitioner that she could take a leave of absence and return to work after her temporary restrictions expired. Because Petitioner’s restrictions were temporary, Mr. Zook did not contact Respondent’s Human Resources Department to schedule a job accommodation meeting. Despite Mr. Zook’s statement, Petitioner returned to work the following day and performed some work for a period of time. After Mr. Zook arrived at the warehouse, he went back to the Receiving Department and asked Petitioner why she was at work. Mr. Zook reminded Petitioner that he did not have any work for her to do at that time and that he could not allow her to work in violation of her doctor’s restrictions. After speaking with Mr. Zook, Petitioner clocked out, signed some paperwork, and left the building. Petitioner did not return to work after September 19, 2007. On October 15, 2007, Petitioner saw her podiatrist again. Petitioner’s podiatrist extended her temporary no- standing restriction for another six weeks. Petitioner understood, however, that her no-standing restrictions remained temporary at that time. Petitioner applied for and received short-term disability (“STD”) benefits beginning around the end of September 2007. Petitioner used paid time off until the STD period benefits began.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter an order dismissing the Petitions for Relief in these consolidated cases. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2009. COPIES FURNISHED: Hnin N. Khaing, Esquire Henrichsen Siegel, PLLC 1648 Osceola Street Jacksonville, Florida 32204 Kathleen Mones, Esquire Seyfarth Shaw LLP 1545 Peachtree Street Northeast, Suite 700 Atlanta, Georgia 30309 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Between July 25, 1977, and August 10, 1978, petitioner, Douglas A. Charity, was employed with the Division of Security, Department of General Services, first as a Capitol Security Officer I and then as a Surveillance Systems Operator. Thereafter, petitioner was employed for approximately ten months as a legislative intern budget analyst with the Senate Ways and Means Committee. From there, he was employed between June and November of 1979 as a research analyst with the Citizens Council for Budget Research. One of his prime projects in this position was a review and analysis of the Division of Motor Pools in the Department of General Services (DGA). From December of 1979 through August 27, 1980, petitioner was unemployed. He desired to find a position in an administrative, analytical or consulting capacity but was unsuccessful in finding employment. On August 27, 1980, petitioner was offered employment with the Division of Security within DGS. Based upon prior conversations, it was orally agreed between petitioner and administrators within the Division of Security that petitioner would be assigned to and be paid at the salary level for the position classified as a Capitol Security Officer I. The salary for this position was approximately $8,000.00 per year. It was further agreed that petitioner would not wear a uniform nor would he perform the duties normally required of a Capitol Security Officer. Instead, it was agreed that petitioner would perform duties normally required of a Capitol Security Officer. Instead, it was agreed that petitioner would perform duties of an "administrative" nature and assist with the preparation and writing of a four-year plan containing an analysis of the Division of Security. Because the preparation of the four-year plan was not expected to take long and because the salary for a Capitol Security Officer was not as high as petitioner desired, it was anticipated by those within the Division of Security that petitioner would continue to seek other employment. Petitioner did, in fact, continue to seek other employment. One of his reasons for accepting employment with the Division of Security was to enhance his possibilities for employment in an administrative, analytical or consulting capacity through his record at DGS which would show his work on the four-year plan. Some two and a half months prior to petitioner's employment with the Division of Security on August 27, 1980, an outline for the four-year plan had already been prepared and approved. The purpose of the plan was to review the function and performance of the Division of Security and to set a plan for structural and program development and change. A portion of the plan pertained to position descriptions and classifications and the Division of Security's need for additional positions classified as management analyst and administrative assistant. The plan ultimately concluded that such positions were not needed within the Division of Security. The four-year plan was completed in February of 1981. In addition to his work on the four-year plan, both before and after February of 1981, petitioner performed duties in the following areas: reports on security personnel, procedures and problems; administrative correspondence and paperwork; budget issues; legislative bill analysis; and the attendance of meetings with DGS officials and legislative staff persons. His duties varied from day to day, dependent upon instructions he received from the Division Director or Assistant Director. Construing the facts presented at the hearing with respect to the duties actually performed by petitioner from August 27, 1980 through January 10, 1982, in a manner most favorable to petitioner, his actual duties compared with the job description for the classification of Administrative Assistant I. During the entire period in question, petitioner was classified as and received the salary of a Capitol Security Officer I. He never wore a uniform and he never performed the duties of a Capitol Security Officer I which duties included patrolling and maintaining the security of the Capitol Building and Legislative facilities on an assigned shift, locking doors, raising and lowering flags, maintaining logs and related security duties. Petitioner's immediate superiors within the Division of Security, as well as the Executive Director and those within the personnel office of DGS, were aware that petitioner was performing out-of-class duties for the Division of Security. Various efforts were made by DGS officials to help petitioner find employment in a higher position. The possibility of creating a management analyst position in another Division was considered, but that position was never established. Petitioner did not qualify for such a position until approximately October of 1981. The Chief of the Bureau of Personnel Management Services performed an audit of the Division of Security to ascertain if additional administrative positions were needed. While the first draft of the audit report recommended a reorganization of the Division to include an Administrative Assistant I position, it was ultimately concluded that the Division needed only two administrative positions -- the Director and the Assistant Director. Petitioner was informed of a position as an Assistant Facilities Services Coordinator in the Bureau of Property Management, but chose not to apply for that position. Though efforts were made by officials within DGS to either create a higher position for petitioner or place him in a vacant higher position, petitioner was never promised a specific position. Instead, he was informed of possibilities for placement in the future. He was also told that should such positions become established or available, he would have to qualify for the position and compete with other applicants. Petitioner discussed his increasing frustrations with his employment situation with officials within DGS. He also sought advice from a Personnel Program Analyst with the Department of Administration (DOA). She advised him that he could request an audit of his position through his supervisor, his own personnel officer or the DOA Bureau of Program Assistance, whose function is to perform desk audits to ascertain whether the duties performed by an employee are the same as the position description for that employee. She also informed petitioner that he could resolve his difficulties through the career service system or the grievance procedure set forth in the collective bargaining agreement. She indicated to him that he may wish to wait and see if the management analyst position (which had been discussed) would become available, in which case the problem might resolve itself if he were able to fill that position. The Department of Administration was never furnished with a current position description accurately reflecting the duties of petitioner's position. No one ever requested the DOA's Bureau of Program Assistance to perform a desk audit appraisal of petitioner's duties and classification, and petitioner's position was not among those randomly selected for desk audit review. By late November and throughout December of 1981, officials within DGS were becoming increasingly concerned with the fact that petitioner was performing out-of-class duties. Though efforts were maintained to find a position for petitioner which would more accurately reflect his actual job duties, such efforts were not successful. In mid-December 1981, petitioner filed a grievance pursuant to the collective bargaining agreement. After the final draft of the audit of the Division of Security indicated that no additional administrative positions were needed in that Division, petitioner was informed that he would be required to cease out-of-class work and that he must commence to perform the official duties of a Capitol Security Officer I effective January 11, 1982. Petitioner did assume the duties of a Capitol Security Officer on January 11, 1982, and has since functioned in that capacity.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED: That the relief sought by petitioner from the Department of General Services and the Department of Administration be DENIED, and that the petitions filed in Case Nos. 82-2733 and 82-3381 be DISMISSED. Respectfully submitted and entered this 14th day of October, 1983, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October 1983. COPIES FURNISHED: Robert B. Beitler, Esquire Post Office Box 12921 Tallahassee, Florida 32317 Sylvan Strickland, Esquire Room 452, Larson Building Tallahassee, Florida 32301 Daniel C. Brown, Esquire General Counsel 435 Carlton Building Tallahassee, Florida 32301 Thomas M. Beason, Esquire Suite 858, Barnett Bank Building Tallahassee, Florida 32301 Secretary Nevin Smith Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Thomas Brown, Executive Director Department of General Services 133 Larson Building Tallahassee, Florida 32301
