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: Overall organization. The City of Tarpon Springs has a mayor and four commissioners and operates under a city manager form of government. Neither the commissioners nor the mayor play an active role in the day to day operation of the City. The City Manager has the responsibility of operating the day to day affairs for the City. Collective bargaining relationships exist between the City and unions representing the Police and Fire Departments. The City Manager negotiates for the City in these relationships. Other than the Police and Fire Departments, there are approximately fifteen or sixteen departments with over 100 employees within the City. The actual number of employees varies seasonally, with the City employing more in the winter. At this time, the City employs approximately seventeen persons under the CETA program. The Public Works Department consists of ten or eleven separate departments, each of which, is headed by a foreman, and the Public Works Director has overall responsibility for the entire Department. His position is primarily one of assistant city manager. Four or five times a year, the City has supervisory meetings attended by the City Manager, the Public Works Director and the foremen of the various departments. Discussed at such meetings, are problems involving personnel, discipline and scheduling. Uniforms are available to most City employees on a voluntary basis. If, an employee chooses to wear a uniform, the City pays half the price of the uniform for the employee, with the exception of school crossing guards for whom the City furnishes uniforms and CETA employees for whom uniforms are not available. Uniforms worn by foremen have the word "foreman" written on them. Foremen. Each department under the Public Works Department is headed by a single foreman, with the exception of the Parks and Cemeteries Department which has two foremen. These various departments each have between three and eighteen employees, and include the departments of streets, sewer, sanitation, water distribution, building and maintenance, meters, water pollution control, and general maintenance. The City generally does not hire persons for the various departments without the recommendation or approval of the foreman. Under normal conditions, the foremen make the decision as to overtime work and the transfer of employees from one department to another. Written and oral evaluations and recommendations for wage increases are made by the foreman to the Public Works Director, which recommendations are normally approved. If an employee were caught drinking on the job, a foreman may fire the employee and then tell either the City Manager or Public Works Director about it later. The City then conducts an investigation into the matter to avoid possible future problems, but normally the decision of the foreman is approved. With a less offensive problem, such as absenteeism, the foreman issues a warning in writing. After the second warning, the foreman informs the Director or Manager that he is dismissing that employee and the City then terminates employment. Foremen make the decision as to time off for personal problems or emergencies and also grant approvals for vacation times. If there are complaints or grievances within a department, the foreman of that department normally takes care of it, very seldom do grievances come to the Public Works Director. An employee may be transferred from one department to another through the agreement of the two foremen involved. The primary duty of the various foremen is to direct the employees and supervise the activities within their respective departments. During shortages of personnel, foremen participate in the same type of work as their employees. Supervisory authority is one of the basis, along with longevity, for the pay differentials between foremen and other employees. Foremen assist in the formulation of policies and work schedules within their respective departments and are consulted with respect to the preparation of the budget. There are no supervisory-type personnel between the foremen and the Director of Public Works. Foremen handle grievances and would thus have a role in the administration of collective bargaining agreements. CETA employees. CETA employees work along with other City employees and the City is reimbursed for their salaries by the federal government. While they may have the same rate of pay as another person in their classification and do receive overtime pay, they do not receive raises nor do they have the fringe benefits which other employees have, such as hospitalization, uniforms, paid holidays, vacation, and sick leave. The CETA program presently extends through September 30, 1976, and such employees are hired until that time. If the City had a vacancy in a regular, permanent position, it would fill that position with a good CETA employee rather than going out and hiring another employee. Part-time employees. The City employs a number of part-time employees to work as school crossing guards, to police the beach, to do summer work with recreation, to work in the library and to do clerical and custodial work. Certain of these part-time employees are seasonal. In order to receive hospitalization benefits, an employee must work thirty or more hours per week. The three school crossing guards work 25 hours per week and receive uniforms fully paid for by the City. They are supervised by the Chief of Police. Other part-time employees fall under the supervision of the foreman or director for the department for which they work. Vacation and sick leave, as well as holiday pay, are prorated for part-time employees based upon the number of hours that they work. Their rate of pay is based upon the federal minimum wage though some regular part-time employees receive merit pay increases. In accordance with F.S. Section 447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. Respectfully submitted and entered this 4th day of August, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Curtis Mack Chairman Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, Florida Mr. Edward R. Draper 5400 West Waters Avenue, B-4 Tampa, Florida 33614 Mr. Allen M. Blake, Esquire Marlow, Mitzel, Ortmayer & Shofi 607 South Magnolia Avenue Tampa, Florida 33606
The Issue Whether Olin Scott Stoutamire is required to repay monies paid to Olin Scott Stoutamire as salary, which is alleged by the Department of Transportation (DOT) to be excess salary.
Findings Of Fact Petitioner is an agency of state government. The Respondent is a career service employee of the Petitioner, and is employed at a site located away from the Petitioner's District Office in Chipley, Florida. The Respondent is the Project Manager of the Petitioner's Thomasville Road and Interstate 10 Intersection Improvement Project in Tallahassee, Florida. The Respondent is paid less than other Petitioner's Construction Project Managers because the Respondent has less tenure. The Respondent's supervisor told Respondent that he would try to correct what appeared to be a salary inequity. The Petitioner initiated a raise for Respondent equal to 5 percent of the Respondent's base rate of pay. The proposed 5 percent salary increase was initiated by his supervisor completing and submitting an "Employee Action" form. The form provides the employee's identification, position, and includes the employee's current base pay rate and the calculated pay rate after the proposed increase becomes effective. The Respondent's base rate of pay and the resulting calculations as to the proposed resulting pay increase were incorrect on the Employee Action form submitted to the Petitioner's Personnel Office (Personnel) in Chipley, Florida. Personnel detected the supervisor's error, but then committed its own error, resulting in an $80 bi-weekly overpayment. The Respondent noticed the apparent overpayment and inquired of his supervisor if there had been a mistake. Respondent told his supervisor that he did not want the State to seek reimbursement for a large amount at a later date. The Respondent's supervisor told Respondent that the payment was correct and to accept it. The Respondent asked him to check and be certain because he did not want to have to repay the money. A short time later, the Respondent's supervisor told Respondent to accept the total amount of the warrant as being correct. His supervisor mentioned other pay increases for which the Respondent was being considered during the same time that the 5 percent pay increase was being processed. The Respondent thought that his supervisor had checked with personnel, and that his pay was correct. The Petitioner did not become aware of the error until an overpayment of $1,200 had accumulated. The Petitioner's Office of Financial Services requested reimbursement in the amount of $771.15 as payment in full within ten days or a payment of $117.00 biweekly pursuant to Sections 110.205(2) and 216.251, Florida Statutes and Chapter 60L-8, Florida Administrative Code. The Respondent's salary was immediately adjusted to show the correct amount. The Respondent contends he did his best to determine if he was being overpaid and was assured the payment was correct. The Respondent changed his budget and spent the money in reliance upon the assurance that the payment to him was correct. The Respondent concedes that Petitioner's records reflect an error and an overpayment. However, the Respondent does not believe he should have to repay the money immediately or in amounts greater than he received the overpayment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent repay $40 per pay period to the Department beginning on the effective date of the next annual pay raise and continuing each month thereafter until the overpayment is repaid. The Department refer the case to the Department of Banking and Finance if an agreement cannot be reached. DONE AND ENTERED this 9th day of July, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1997. Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 34399-0458 Olin Scott Stoutamire 63 Graham Trail Crawfordville, Florida 32327
Findings Of Fact Findings of Fact 1-15 are based on the facts agreed on by the parties and contained in their Prehearing Stipulation filed on September 19, 1988. Pat Swan has been employed by the Department of Corrections as a Personnel Technician I since July, 1981. On March 3, 1987, Pat Swan assisted the Commission in the investigation of Linda Lundy v. Department of Corrections (FCHR #86-4478) via affidavit. She confirmed allegations and statements asserted by Ms. Lundy. On October 14, 1987, the investigator submitted a recommendation of cause and on November 6, 1987, the final determination of cause was issued. On June 26, 1987, Pat Swan was notified of her transfer to New River Correctional Institution effective July 6, 1987. New River Correctional Institution was a distance of 45 miles from the Region II office. This was a lateral transfer for Pat Swan and resulted in no loss of pay or benefits. There were six other Personnel Technician I's within a 50-mile radius of New River who could have been transferred to the new position. All of those persons are white. No departmental employee was asked if he or she would willingly accept a transfer. Pat Swan was transferred involuntarily. Although the Respondent informed Pat Swan that her reassignment would be for an indefinite period of time, her former position was filled on August 7, 1987, by Ms. Gertrude Bishop. The Respondent was notified of Pat Swan's Complaint of discrimination on July 31, 1987. Subsequent to her notice of transfer, Pat Swan apprised Mr. David Gordon, and he, in turn, approached Mr. Dinkins questioning his own status as an employee. Pat Swan's anniversary date is November 1st. According to the department's rules, she should be evaluated in November of each year. However, she was not evaluated in November, 1986, or November, 1987. The Department's rules dictate that performance evaluations will be generated for each employee within 30 calendar days of the employee's anniversary date, and performance appraisals shall be used for promotion and employee merit raise advancements In November, 1987, Mr. R. Nate Holton, Personnel Manager of New River Correctional Institution, declined to evaluate Pat Swan. The reason given by Mr. Holton was that he was advised by Ms. Lisa Goodner not to evaluate her because she did not have performance standards on file. On April 5, 1988, Pat was notified that effective April 20, 1988, she was going to be transferred back to Region II Personnel Office in the same classification and at the same rate of pay. At her new job she was stationed in the lobby and the job duties have changed. Pat Swan is a member of a protected group. The following additional facts are based on the evidence presented at the formal hearing and on the credibility determinations of the Hearing Officer. Petitioner began employment with DOC in July, 1981, at the Region II office in Gainesville, Florida. Petitioner's supervisor, the Senior Personnel Manager, Don Finley, did not complete a performance appraisal on Swan for the appraisal period of November 1, 1985, to November 1, 1986. As previously noted, Swan assisted the FCHR in its investigation of another case, Lundy v. DOC, FCHR Case No. 86-4478, by filing an affidavit. Career Service System Rules specify that for permanent employees, an annual appraisal shall be completed within 30 calendar days following each employee's anniversary date. (22A-9.003(3), Florida Administrative Code). The appraisals are the responsibility of the employee's immediate supervisor. (22A- 9.003(2), Florida Administrative Code). One of the purposes of the performance appraisal is to determine the employee's eligibility for merit salary advancements. (22A-9.003(3), Florida Administrative Code). Swan's evaluations had been "Exceeds Standards" between 1983 and 1985. November, 1985, was the last evaluation she received. She should have been evaluated in November, 1986, and November, 1987, but was not. In 1986 and 1987 every employee of the Department who received an "exceeds performance standards" annual appraisal received a 3% merit increase on his or her anniversary date. Any special appraisal done outside of the 30 days after the anniversary date does not relate back to the anniversary date so as to make an employee eligible for a merit increase. Lester Dinkins took over the job of senior personnel manager at the Gainesville Office on March 20, 1987. Lester Dinkins prepared new performance standards for Petitioner in April, 1987. These standards covered the period from April 24, 1987, to November 1, 1987. In a memorandum dated April 27, 1987, Lester Dinkins informed Petitioner that since her service for the period November 1, 1986, to April 23, 1987, was not covered by a performance appraisal, her rating for this time period would be "Achieves Performance Standards." In June, 1987, R. Nate Holton, personnel manager at New River Correctional Institution informed Mr. Dinkins that he was having a problem drawing an acceptable applicant for the PTI position which he had advertised. New River Correctional Institution was a new institution. On June 26, 1987, Petitioner was notified that she was being reassigned from her present position as PTI in the Regional Personnel Office to PTI at New River Correctional Institution effective July 6, 1987. The idea to reassign Petitioner was Dinkins' suggestion. Dinkins knew nothing of the Lundy case or of Petitioner's affidavit in that case. Petitioner's reassignment was lateral and did not result in a reduction of salary or benefits, or a change in the level of responsibility. Petitioner's reassignment to New River Correctional Institution was within a 45-mile radius of the Gainesville Office. Petitioner's supervisor at New River Correctional Institution was the personnel manager, R. Nate Holton. Mr. Holton had been newly appointed to the position of personnel manager at the time of Petitioner's reassignment. Holton knew nothing of the Lundy case until the allegations regarding it were made in this case. Mr. Holton failed to develop new performance standards for Petitioner and to discuss them with her after she was reassigned to New River Correctional Institution. Mr. Holton could not use the standards which Mr. Dinkins had previously developed for Petitioner to complete her annual performance appraisal because Petitioner's duties at the institution were not exactly the same as they had been at the regional office. In November, 1987, Mr. Holton discovered that he had failed to develop performance standards for Petitioner and he contacted Lisa Goodner, Assistant Chief of the Bureau of Personnel for the Department, to determine his course of action. Ms. Goodner advised Mr. Holton that because he had not identified performance standards for Petitioner when she was reassigned to New River Correctional Institution as required by Chapter 22A-9, Florida Administrative Code, and by the Department's performance appraisal procedures, he could not appraise Petitioner. Petitioner's rating was considered to be at the "Achieves Performance Standards" level for the period of time from April 24, 1977, to November 1, 1987, since this period of service was not covered by a performance appraisal. As Assistant Chief of the Department's Bureau of Personnel, Ms. Goodner provides advice to field personnel staff regarding all areas of personnel administration and the interpretation of personnel rules. Petitioner filed a grievance in which she challenged the fact that she had not received a formal performance appraisal The Department denied Petitioner's grievance pursuant to Chapter 22A- 9.002(2), Florida Administrative Code, which states that employees shall not be expected to meet performance standards which have not been defined and identified to them as being part of the requirements of their positions. A performance appraisal which had been completed on Mr. Holton, even though standards had not been previously written and discussed with him, was ordered sealed and marked invalid by Richard Dugger, Secretary of the Department. While Petitioner was working at New River, the Region II office received a new Personnel Technician III position. David Gordon was promoted to that position. Gertrude Bishop applied for and was promoted to the Personnel Technician II position that had been filed by Gordon. Petitioner met the qualifications for the Personnel Technician II position, but did not apply for it. The opening was advertised statewide and at all DOC facilities. During the time that Petitioner had been at New River Correctional Institution, the Gainesville personnel office had been reorganized in response to a Department audit. The duties of all the personnel technicians in the Gainesville personnel office were changed and redistributed as a result of the audit. Petitioner was placed in the lobby area upon her reassignment to the regional office because there was inadequate space to provide her with her own office. Prior to Petitioner's reassignment to New River Correctional Institution there were 4 persons in the Gainesville personnel office. Petitioner was the only PTI. There are currently 8 persons in the Gainesville personnel office, which number includes 3 PTI's. The duties currently performed by Petitioner are at the professional level and come within the career service class specifications for a PTI. Of the 8 employees in the Gainesville personnel office, 3 of them are black. They are David Gordon, Gertrude Bishop and Petitioner. With the exclusion of Mr. Dinkins, blacks are the highest ranking employees in the Region II personnel office.
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, and therein deny Patricia A. Swan the relief sought and dismiss the Petition for Relief. DONE AND ENTERED this 10th day of November, 1988, in Tallahassee, Leon County, Florida. DIANE K. KIESLING 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 10th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3167 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, PATRICIA A. SWAN Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 9-11(19-21) and 28(40). Proposed findings of fact 1-8, 13, 16, 17, 22, 23 and 26 are rejected as irrelevant. Proposed findings of fact 12 and 15 are unsupported by the credible and competent, substantial evidence. Proposed findings of fact 14, 18-21, 24, 25, 27, and 29-32 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, FLORIDA DEPARTMENT OF CORRECTIONS 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1 & 16); 2(11); 3(17); 4(2 & 18); 5-12(22-29); 13(8); 14(7); 15(8); 16-25(30-39); 26(14); 27-33(41-47); 34(40); and 35(48). COPIES FURNISHED: Carla D. Franklin, Attorney at Law Post Office Box 694 Gainesville, Florida 32602 Lynn T. Winston Assistant General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-1570 Margaret Agerton, Clerk Florida Commission on Human Relations 325 John Knox Road, Suite 240, Building Tallahassee, Florida 32399-1570 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the facts stipulated to by the parties, the following relevant facts are found: Prior to her employment with the respondent, petitioner had work experience in waitressing, bookkeeping, operating a wine and beer bar and operating a grocery store. At all times relevant to this proceeding, petitioner was married and had three children. Respondent Jax Liquors, Inc. (Jax) owns and operates a retail liquor business which is' divided into package store operations and lounge operations. Though its lounges are generally located adjacent to a package store, each is a separate entity having its' own management structure. There are 35 package stores employing 198 males and 199 females, and 11 lounges with 135 employees, 87 percent of which are female. While sales figures for the package stores range from $1.5 to $4 million per year, the lounges' sales figures are approximately $50,000 per year. Because of the greater volume of inventory, customers, employees and paper work, promotion of employees to the management level in the package stores takes a longer period of time. Employees in the lounges can move up from the position of cocktail waitress to assistant manager or manager in a short period of time because of the less demanding nature of the work. The employee turnover rate in the lounges is eight times higher than that of the package stores. Lounge employees tend to be younger and less settled and career-oriented than package store employees. On or about February 22, 1982, petitioner was hired by Jax as a cocktail waitress at the Jax Lounge on the Apalachee Parkway in Tallahassee. She was trained as a cocktail waitress for approximately two weeks, and when the assistant manager was promoted to manager, petitioner began training as an assistant manager. During her months at the Apalachee Parkway lounge, petitioner was a good worker with no complaints or problems. On or about March 24, 1982, petitioner was transferred to the Jax lounge on Thomasville Road in Tallahassee to serve as an assistant manager. On July 9, 1982, she was promoted to the position of manager at that lounge. One coworker, a cocktail waitress, described petitioner as a strict, but good manager with no scheduling, customer or staff complaints. Another coworker, who became the assistant manager when petitioner was promoted to manager, described petitioner as a hard worker but overbearing and bossy, with some scheduling problems and frequent tardiness. A similar description of petitioner was provided by the former manager of the Thomasville Road lounge. A frequent customer at the lounge described petitioner as competent and congenial with customers, and an energetic worker. Petitioner replenished the lounge supplies from the adjoining package store. The manager of the package store felt that she did not have a good understanding of the inventory and supplies she needed at the lounge. On or about July 20, 1982, approximately two weeks after petitioner was promoted to the position of lounge manager, John Chern was promoted to the position of Tallahassee District Supervisor thereby becoming petitioner's direct supervisor. At about that same period of time, the Tallahassee lounges were not operating at a high enough profit and the District Manager instructed Chern to make certain changes in operation. Among the changes were the addition of personnel bartenders and cocktail waitresses, so as to provide better service to the lounge patrons. Mr. Chern told his supervisor, the District Manager, that he had run into problems with petitioner and had experienced difficulty in obtaining cooperation from her in implementing the new schedule. Mr. Chern had also heard complaints about petitioner from other employees of both the lounge and the adjoining package store regarding scheduling and her treatment of her employees'. He felt that her general overall performance as a lounge manager was "weak." Petitioner admits that she felt and told Mr. Chern that she knew it would be difficult to work with him and that she knew if he became her supervisor, she would be fired. Petitioner felt that Mr. Chern was overly strict, and resented the fact that he would call her at home during her off- hours to discuss lounge business. John Chern has been employed with Jax Liquors since 1971, having started as a stock clerk. On August 9, 1982, Mr. Chern discharged petitioner from her employment with Jax Liquors. In explaining the reason for her discharge, Mr. Chern made reference to "outside obligations, your husband and family..." or "family and other obligations." On the following day, Mr. Chern filled out a form explaining the reason for petitioner's discharge as "not right person to run lounge, poor attitude with customers, did not take supervision or work with employees." There were no written reprimands in petitioner's personnel file. While it is the policy of respondent to issue written reprimands for nonmanagerial employees, more is expected from an employee at the managerial level and written reprimands are not required. After petitioner's termination, the assistant manager, a married female, was promoted to the position of lounge manager. Petitioner presented raw data or "head counts" derived from the personnel files of respondent in an attempt to demonstrate that sex and/or marital status had an effect upon the likelihood of involuntary discharge. However, the chosen categories of persons (i.e., males -- without disclosure of their marital status, women with children -- without disclosure of their marital status) were not well-defined and were overlapping. In addition, no statistical analysis was applied and there is thus no statistical significance to these head counts or raw data. No inference can be raised from this data that either gender or marital status was a causative factor in any involuntary termination. Applicants for employment at Jax Liquors are required to list their marital status, number of children, ages of children and who will care for the children. The purpose of these questions is to put the applicant on notice that the hours of employment are often unusual and are subject to sudden change. Lounge employees are also required to sign a form stating their agreement to be reassigned to any lounge and to work any position assigned at the rate of pay for that position. Respondent occasionally requires lounge employees to work at different lounges in different positions when the volume of business anticipated requires additional staffing. Lounge employees are generally able to make more money with a greater volume of customers.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petition for relief filed by Angela Portera against Jax Liquors, Inc. be DISMISSED. Respectfully submitted and entered this 12th day of July, 1985 in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer 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 12th day of July, 1985. COPIES FURNISHED: Virginia Daire 118 N. Gadsden Street Tallahassee, Florida 32301 Douglas W. Abruzzo, with Donald L. Tucker, P.A. Suite 804 Lewis State Bank Building Tallahassee, Florida 32301 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303 Suzanne Oltman Clerk of the Commission Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303
The Issue The issue to be resolved in this proceeding is whether Petitioner was the subject of unlawful employment practices by her employer because of her race and age.
Findings Of Fact Petitioner is a 28-year-old African-American female. Respondent operates one of the State’s largest psychiatric hospitals. In April 2004, Respondent had at least 3 openings for a full-time Secretary Specialist at different units of the hospital. In April 2004, Petitioner along with two other female applicants were contacted and asked if they were interested in being considered for three Secretary Specialist positions with Respondent. The positions’ duties involved, among other things, typing medical records and compiling reports on the units’ patients and recording, transcribing and disseminating all staff meetings held on these units. Petitioner and the two other women indicated that they would like to be considered for the positions. One of the women who applied for the positions was an older, white female who had worked at the hospital for at least 10 years. No evidence demonstrated the actual age of this older woman or how much older she was than Petitioner. The evidence also did not demonstrate if her work history extended beyond 10 years outside the hospital. The other applicant, like Petitioner, was a beginning employee at the hospital. Other than the fact she met the minimum qualifications for the positions, the evidence did not establish her race, age, or work experience. Petitioner’s application was not introduced into evidence. At the time, Petitioner had about 6 years of work experience as an office manager and /or an executive secretary. The experience does not appear to be in the medical or psychiatric field. As can be seen from a review of the evidence and pleadings in this case, Petitioner’s writing skills are very poor and are replete with poor grammar and incorrect word usage to the point of being almost incomprehensible. Therefore, the quality of her executive secretary skills are questionable. As part of her application packet, Petitioner submitted several educational/professional credentials to Respondent. The credentials consisted of certificates in the areas of Office Supervision II and III and Post Secondary Office Supervision and Administration. Petitioner claims that these credentials entitled her to a higher salary than she would have received as a beginning employee or at the least allowed her to negotiate for a higher salary. However, no evidence was offered that supported Petitioner’s contention that such credentials entitled her to a higher salary or that she lost her opportunity to negotiate for a higher salary. The fact that the position may have been advertised as “open-competitive” does not mean that an applicant is entitled to or will receive a higher salary offer. The classification only enables an employer or employee to negotiate a salary based on qualifications. The employer and employee are not required to negotiate and either may elect not to negotiate. Indeed, negotiation may be non-existent based on budget considerations and the availability of other applicants willing to work for less pay. At some point, an interview was scheduled for Petitioner by Deborah Joyce. In setting up the interview, Ms. Joyce advised Petitioner that the starting salary for the position was $766.52 every two weeks. Petitioner indicated that she wished to be interviewed for the positions. All three womens’ application packets were reviewed by a hiring committee. All three women were offered employment as Secretary Specialists at different units. Petitioner and the other beginning applicant were offered employment at $766.52 every 2 weeks. The older, white woman was allegedly offered employment at a higher salary than the two beginning employees. However, there was no evidence that demonstrated how much the older woman’s salary was, whether it differed from Petitioner’s and its relationship to the salary she had been receiving in her then current position at the hospital. Petitioner did not introduce into evidence the pay scale for the position to which she applied. Some evidence suggests that the offered salary was the beginning and lowest salary for that position. Petitioner testified that the offered salary was at the low-end of the scale for the position that she applied for. Her testimony in that regard is accepted. Petitioner was informed by telephone of the Respondent’s offer of employment to work on the unit known as Cypress Village. The telephone call was made by Lela Parker- Clark, a black female and the medical unit’s specialist (MUS). The unit’s treatment and rehabilitation director (UTRD) was Sateria Gunter, a black female. Ms. Gunter and Ms. Parker-Clark would be Petitioner’s supervisors. The evidence indicated that both women had been working on the unit for several years and apparently had done various routines and reports in the same manner for some time. No evidence was offered as to the actual age of Ms. Gunter or Ms. Parker-Clark, other than they were both older than Petitioner and had possibly worked their way up to their administrative positions from direct care staff. Because the offered salary was not what Petitioner desired, she inquired further of Ms. Parker-Clark about the salary. Petitioner learned that her educational credentials had been lost and possibly had not been reviewed by the committee. Ms. Gunter indicated that she would have the committee review its offer if Petitioner would fax her the documents. Petitioner faxed the documents to a fax machine at the hospital. It is unclear whether the documents were received and reviewed by the committee or whether the committee was made aware of Petitioner’s additional educational documents. The evidence conflicts on this point. At the time of the hearing, neither the original nor faxed documents were in Petitioner’s personnel file. Indeed, only copies of later-supplied documents that were specially marked by Petitioner are in Petitioner’s personnel file. In any event, the salary offer was not changed. No one from the committee testified at the hearing regarding the documents reviewed by the committee or otherwise made known to the committee. No evidence was offered that demonstrated that such added credentials would have made a difference in the salary offered to Petitioner. Petitioner offered no evidence that Respondent elected to negotiate any salaries with any of the people it hired as Secretary Specialists. The fact that a white, 10-year employee of Respondent may have been offered a higher salary than Petitioner does not demonstrate that the salary was negotiated or that Respondent otherwise discriminated against Petitioner based on her race or age since the employee in question was already an employee with more years of experience at the hospital. Without such evidence, it is impossible to determine whether the absence of the documents was deliberate or unintentional, motivated by Petitioner’s race or age or even caused an adverse impact in the conditions or terms of Petitioner’s employment. Ms. Gunter informed Petitioner that the position was still available at the original salary offer of $766.52. Instead of attempting to negotiate further by declining the offer, Petitioner accepted employment and began working at the unit on May 21, 2004. Petitioner accepted the offer because she needed the income. There was no evidence that demonstrated Petitioner, who is a competent adult, was somehow coerced into her decision to accept the offer by Respondent. In the beginning, the relationship between Ms. Gunter, Ms. Parker-Clark and Petitioner was reasonably good. However, once Petitioner began to question the manner in which Ms. Parker-Clark did things the relationship deteriorated. Ms. Parker-Clark became abrasive and, Petitioner claims, more strict regarding Petitioner’s leave than with co-workers. She would belittle Petitioner in front of co-workers. Ms. Parker- Clark had the security desk record when Petitioner arrived at work. Based on the recorded time, both women claimed Petitioner was falsifying her timesheet and forced her to change her claimed time on several occasions. Many of the accusations arose from the fact that Petitioner was often late because of difficulties with her daughter, who had learning disabilities. Additionally, Petitioner sometimes arrived early and sometimes stayed late; that, in Petitioner’s view, made up her time. However, per hospital policy, such early arrival or late stay was not credited unless pre-approved by Petitioner’s supervisor. Outside of Petitioner’s claims of forced time-sheet changes based on time she had to take to deal with her daughter’s disability or disallowed overtime, etc., there was no evidence that other similarly-situated employees were treated differently than Petitioner. In fact, the only testimony regarding Ms. Parker-Clark’s and Ms. Gunter’s treatment of other employees was that there were some employees they treated well and some employees they did not treat well and that there may have been ongoing “management problems” on the unit. There was no evidence that such treatment was based on the race or age of the individual employee. Petitioner assumes and asserts that she was entitled to family medical leave, credit for overtime for staying late or more flexible hours. However, she offers no proof that she was entitled to such. Without such evidence Petitioner cannot show that she has suffered an adverse impact in the terms or conditions of her employment. Petitioner also claims she received unwarranted disciplinary actions. Again there was no evidence offered that such discipline was unwarranted. Indeed Petitioner admits that actions she received written reprimands for occurred. Around September 28, 2004, relationships between Ms. Parker-Clark and Petitioner came to a head when Petitioner came to the conclusion that Ms. Parker-Clark had never placed her educational credentials in her personnel file. Petitioner based this conclusion on the fact that, while training herself to use the new computerized personnel system, Peoples First, adopted and, at the time, being implemented, by the State, she discovered that her educational credentials were not listed on the system. Petitioner was training herself because Ms. Parker– Clark refused to train her. Petitioner contacted the personnel office for the hospital and was told that her file was not in their office because it had been sent to Peoples First to be scanned into the system. Unfortunately, the Peoples First system is known for glitches and errors in its records. Petitioner met with Ms. Gunter and Ms. Parker-Clark in a very heated meeting to discuss the lack of information on the Peoples First system and her feelings that Ms. Parker-Clark had intentionally lost the educational documents. Petitioner also voiced her opinion that she was entitled to an increased salary based on her credentials. Petitioner was not satisfied with the response from Ms. Gunter in the meeting. Around October 5, 2004, Petitioner met with Ennis Harris, the assistant administrator of the hospital, over her “issues” with Ms. Parker-Clark and what she should do. Mr. Harris suggested she apply for a transfer to another unit. On October 7, 2004, Petitioner, applied for a transfer to the position of Internal Senior Clerk on another unit. He also indicated that he would approve flex-time for her if Petitioner requested it and that she might be entitled to leave under the Family Medical Leave Act. Around October 13, 2004, Petitioner requested flexible working hours. As promised, Mr. Ennis approved her schedule. At about the same time, Petitioner requested transfer to a Senior Clerk position on another unit. On October 18, 2004, Petitioner requested that her salary be increased by 16 1/2 percent and that she receive such increased pay from the beginning of her employment. There was no evidence that demonstrated the basis for a 16 1/2 percent increase or that such an increase was warranted. On October 21, 2004, the increase was denied by Ms. Gunter. On October 27, 2004, Petitioner grieved Ms. Gunter’s decision. Personnel policy requires that a grievance be filed within 14 days of the act that caused the grievance. The human resources manager returned the grievance without action because 14 days had passed since Petitioner began employment on May 21, 2004, and Petitioner had the opportunity to decline the offered salary if she so desired. On November 1, 2004, Petitioner’s request for transfer was declined because of personnel rules based on the Union contract with the State that prevented transfer of a probationary employee to a higher position. On November 10, 2004, Petitioner appealed the return of her grievance and appealed or grieved the denial of her requests for salary increase and transfer to the hospital administration. The denial was upheld. During this review, Ms. Gunter claimed that Petitioner’s educational/professional certificates had been reviewed by the committee and claimed that the documents in Petitioner’s file were the actual documents reviewed and considered. However, the documents were the certificates that had been specially marked by Petitioner and later placed in her file. Ms. Gunter was unaware of the special demarcation of the documents. Claims of dishonesty were now mutual. Eventually, Petitioner did not wish to deal with Ms. Parker-Clark, unless her job duties required such. Petitioner complained to various administrators of the facility often about her treatment on the unit. Mr. Harris told her that the salary issue was dead and all options to have her salary increased had been explored. On November 22, 2004, Petitioner submitted a letter of resignation at a future date not expected to go past December 13, 2004. In that letter, Petitioner requested overtime hours with pay to complete her job assignments. The same date, Ms. Gunter denied the requested overtime and requested Petitioner to supply a date certain for her resignation. On November 23, 2004, she filed complaints that Ms. Gunter and Ms. Parker-Clark discriminated against her based on her race and age with the hospital’s equal employment office and similar complaints at PERC. On December 7, 2004, Petitioner forwarded an e-mail to the hospital attorney that stated she was leaving early and did not know when she would be back because she was tired of the harassment she was receiving on the unit. Sometime after that e-mail, Petitioner met with the hospital attorney. The hospital did not want to lose Petitioner as an employee and in an effort to help Petitioner, on December 9, 2004, the administration transferred Petitioner to another unit where she has performed well. Even though Petitioner had been requesting a transfer, it is this transfer that Petitioner alleged as a discriminatory action by the hospital. On this point Petitioner’s claim of discrimination has no merit and was clearly not demonstrated by the evidence. Petitioner has also been approved for a promotion at a higher salary, but the promotion has not yet taken effect. The promotion has been on hold because the hospital administrator retired and his replacement had recently taken over prior to the hearing. No evidence demonstrated that the delay was due to any unlawful employment practice. There was no evidence offered regarding a paycheck discrepancy around December 10, 2004. Ultimately, Petitioner’s case rests on assumption and speculation about others’ intentions and terms of employment that she claims she was entitled to. The problem is that there was no or insufficient evidence offered to demonstrate such unlawful intentions or entitlement. Indeed, assuming that Petitioner’s treatment was unjustified, it is more likely that Ms. Gunter and Ms. Parker-Clark engaged in such treatment because Petitioner was a new employee who questioned the old way of doing things and did not hesitate to go around them when she felt a need to do so. Assumptions and speculations are not enough. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of September, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 16th day of September, 2005. COPIES FURNISHED: Viritti Jackson 2173 West 15th Street Jacksonville, Florida 32209 Scott D. Leemis, Esquire Northeast Florida State Hospital 7487 South State Road 121 Macclenny, Florida 32063 Carolyn Dudley, Assistant Staff Director Department of Children and Family Services Building 6, Room 123 1317 Winewood Boulevard Tallahassee, Florida 3239-9070 Cecil Howard, 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
The Issue The issue in this case is whether the Respondent discriminated against the Petitioner on the basis of her age, as alleged in her charge of discrimination dated June 6, 1984, and in her petition for relief dated March 6, 1985.
Findings Of Fact Based on the admissions of the parties and on the exhibits received in evidence and the testimony of the witnesses at hearing, I make the following findings of fact: The Petitioner has been employed by the Respondent from July 1, 1980 to the present. She was first employed with the Respondent as a Staff Assistant II following the abolition of the Crimes Compensation Commission by the Legislature, effective June 30, 1980. The crimes compensation program was transferred to the Respondent at that time. As a Staff Assistant, Petitioner's duties included reviewing claims submitted by field investigators. After approximately two months in this position, the Petitioner requested permission to do the actual investigation of claims. The Petitioner's Bureau Chief, Herbert Parker, authorized Petitioner to investigate claims because her duties as a Staff Assistant did not keep her busy full time. Respondent's Monthly Field Representative Reports, maintained by Mr. Parker, reflect that the "Claims Examiners," i.e., Staff Assistants, including the Petitioner and Betty Cureton, completed a combined total of 13 reports in August 1980. In October 1980 these Reports began to break out the investigation work performed by the Petitioner and Ms. Cureton, showing the number of reports they completed as well as those completed by the actual Field Representatives. The Monthly Field Representative Reports show that Petitioner's investigations gradually increased in number over the next two years, so that in the six months from May 1983 through October 1983, she averaged almost 15 reports per month. A Field Representative was expected to produce at least 25 reports per month. In October 1983, Petitioner's position was reclassified from Staff Assistant II to Field Representative, reflecting the continuing transition in the Petitioner's duties from those of a Staff Assistant to the duties of a Field Representative. When her position was reclassified in October 1983, the Petitioner's salary was $1,570.S2 per month. The minimum salary for a Field Representative was $1,139.70 per month and the maximum was $1,635.60 per month. Petitioner's salary was not increased at that time. The reason Petitioner's salary was not increased at that time is that she was already earning over the minimum for the new classification and the Respondent was experiencing budget problems. In response to its budget problems, Respondent had taken a number of corrective measures, including a freeze on promotional pay increases. Within the Division of Worker's Compensation, the freeze was lifted in December 1983 but the Bureau Chiefs within the Division were admonished to be sure their respective units had "rate" and "salary" available before granting any increases. Rate Reports for the Bureau of Crimes Compensation show that that Bureau did not have any available rate from the time of Petitioner's promotion in October 1983 through March l984when she received a salary increase. The Rate Reports reflect a rate deficit occurred in March 1984 equal to the amount of Respondent's and Betty Cureton's combined salary increases. By Waiting until March to award pay increases to Petitioner and Ms. Cureton, the Respondent was better able to project its budget status through the end of the fiscal year and determine that the Division of Worker's Compensation would be able to offset the Bureau's rate deficit. In deciding whether to give promotional increases and, if so, in what amount, the Respondent considers a person's individual qualifications, along with budget considerations. Some employees do not receive any increase at all when they are promoted others have received less than Petitioner's five per cent and some have received more. The class specifications for the class of Field Representative contain the minimum training and experience requirements, which include: "graduation from an accredited four-year college or university and two years of professional experience directly involved in the juvenile or adult criminal justice system." The Petitioner had only two years of college and she did not have any past employment that would have satisfied the requirement for two years of professional experience in the criminal justice system. Respondent obtained a substitution of required training and experience for Petitioner by counting the field investigation work she did between August 1980 and October 1983, while employed as a Staff Assistant. This substitution enabled her to qualify as a Field Representative once the position was reclassified. A similar substitution was obtained for another employee, Ms. Cureton. Petitioner is a very capable efficient employee who has always received outstanding evaluations, receiving a score of thirty-six out of a possible thirty-six evaluative points on the performance of her duties on her performance ratings by her superiors. The Petitioner's age was not a factor in any of the Respondent's personnel decisions affecting the Petitioner's promotion or promotional pay increases.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Relief filed by Geneva Roberts. DONE AND ORDERED this 11th day of December, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 11th day of December, 1985. APPENDIX The following are the specific rulings on each of the proposed findings of fact submitted by the parties. Rulings on Petitioner's proposed findings: Accepted in part and rejected in part. The accepted portions are incorporated in findings proposed by the Respondent. The rejected portions are rejected either as irrelevant details or because they are not supported by persuasive competent substantial evidence. Rejected as irrelevant. Accepted and incorporated in other findings. The portion up to the first comma is accepted. The portion after the first comma is rejected as irrelevant in light of other evidence in the record, especially when note is taken of the fact that a new employee at ten per cent above the minimum was making substantially less than Petitioner. First sentence is accepted in substance. Second sentence is rejected as irrelevant. Rejected because it incorporates irrelevant details and because to the extent it proposes comparisons between Petitioner and Ms. Raker it incorporates opinions, inferences, and conclusions which are not supported by persuasive competent substantial evidence. Rejected as irrelevant. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Further, the ultimate conclusion asserted in paragraph 8 of the Petitioner's proposed findings is not supported by the evidence. Rejected as irrelevant and also as misleading in light of other evidence. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. The first unnumbered paragraph under the caption SUMMARY OF FACTS is rejected because most of it is not supported by persuasive competent substantial evidence and the remainder is inconsistent with the greater weight of the evidence. The first sentence of the second unnumbered paragraph under the caption SUMMARY OF FACTS is rejected as contrary to the greater weight of the evidence. The last sentence of that paragraph is accepted. Rulings on Respondent's proposed findings: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Most of the first six lines are rejected as constituting summaries of the parties' contentions rather than proposed findings. The substance of lines 7 through 11 is accepted. The last sixteen lines of this paragraph are rejected on the grounds that for the most part they constitute legal argument, conclusions of law, and explication of reasons for making findings of fact, but are not themselves findings of fact. [Some of the material on the last sixteen lines is accepted and incorporated in the Conclusions of Law portion of this Recommended Order.] The substance of this paragraph is accepted, with certain minor corrections and deletions. Accepted. COPIES FURNISHED: Joseph C. Jacobs, Esquire ERVIN, YARN, JACOBS, ODOM & KITCHEN Post Office Drawer 1170 Tallahassee, Florida 32302 Kenneth H. Hart, Jr., Esquire General Counsel Florida Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Betsy Howard, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
The Issue Whether Respondent violated provisions of Petitioner’s Human Resources Manual and Employee Handbook (“the Manual”) on April 20 and May 30, 2018, as charged in the agency action letter dated June 25, 2018.
Findings Of Fact Chapter 2001-324, Laws of Florida, declared the Escambia County Utilities Authority an independent special district with transferred assets and enumerated powers. Chapter 2004-398, Laws of Florida, changed the Escambia County Utilities Authority’s name to ECUA. By law, ECUA provides utility services throughout Escambia County, Florida, and has the power to appoint, remove and suspend its employees, and fix their compensation within the guidelines of Escambia County Civil Services Rules. ECUA’s mission statement specifies that the Board and employees of ECUA “are committed to providing the highest quality service” and that “ECUA will always provide cost-effective services.” ECUA has adopted standards set forth in the Manual in order to govern employee conduct. During all times relevant to the instant case, Mr. Reiter was a utilities service worker assigned to ECUA’s patch services division (“the patch crew”); and he acknowledged on January 4, 2017, that a copy of the Manual was available to him. The patch crew consists of eight people who normally work from 7:00 a.m. to 3:30 p.m., with a 30-minute lunch break and two 15-minute breaks. A significant part of the patch crew’s work involves filling holes left after other ECUA employees have performed utility work. Mr. Reiter drives a truck that delivers sod, asphalt, and/or dirt to work areas. He begins and ends each workday at an ECUA facility on Sturdevant Street in Pensacola, Florida. ECUA’s management received information from an anonymous source alleging that the patch crew was loafing and abusing ECUA’s overtime policy. As a result, ECUA retained a private investigator, Terry Willette, to surveil the patch crew and videotape their daily activities. From April of 2018 to some point in June of 2018, Mr. Willette routinely surveilled the patch crew for 4 to 12 hours a day. Findings Regarding the Allegations from April 20, 2018 On April 20, 2018, Mr. Willette observed Mr. Reiter and a coworker leaving an ECUA facility in an ECUA truck at 4:00 p.m. and arriving at Woerner Turf on Creighton Road in Pensacola at 4:16 p.m. The preponderance of the evidence does not demonstrate that Mr. Reiter deliberately extended his workday by taking a circuitous route from the ECUA facility to Woerner Turf. After picking up sod, Mr. Reiter and his coworker left Woerner Turf at 4:38 p.m. and arrived at Intendencia Street in downtown Pensacola at 5:16 p.m. At this point, Mr. Willette received a call to follow another ECUA employee and discontinued his surveillance of Mr. Reiter. There was conflicting testimony regarding the shortest possible route that Mr. Reiter could have taken upon leaving Woerner Turf. Given that Mr. Reiter was driving to downtown Pensacola just before “rush hour” on a Friday afternoon, 38 minutes is not an unreasonable amount of time to drive from Creighton Road to Intendencia Street in downtown Pensacola. The preponderance of the evidence does not demonstrate that Mr. Reiter deliberately extended his workday by taking a circuitous route from Woerner Turf to the worksite on Intendencia Street. A “daily overtime report” for April 20, 2018, indicates Mr. Reiter worked from 3:30 p.m. to 6:30 p.m. and claimed three hours of overtime. To whatever extent that ECUA takes issue with the total amount of overtime claimed by Mr. Reiter on April 20, 2018, there is no evidence as to what work Mr. Reiter performed after Mr. Willette discontinued his surveillance of Mr. Reiter shortly after 5:16 p.m. that day, and thus there is no support for a finding that Mr. Reiter dragged out his workday or artificially increased his overtime hours on that date. Findings Regarding the Allegations from May 30, 2018 On May 30, 2018, Mr. Willette photographed Mr. Reiter taking PVC pipe belonging to ECUA and placing it in his personal vehicle. Mr. Reiter acknowledged during his direct testimony that he took the PVC pipe without authorization from a supervisor. He testified that the PVC pipe was “spent material” and that such material is always discarded. Mr. Reiter testified that he ultimately returned the PVC pipe in question. The preponderance of the evidence demonstrates that Mr. Reiter took the PVC pipe without authorization.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utilities Authority find that Michael J. Reiter violated: Section B-13 A (4), conduct unbecoming an ECUA employee; Section B-13 A (27), theft or stealing; and Section B-13 A (33), violation of ECUA rules or guidelines or state or federal law. DONE AND ENTERED this 25th day of September, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 25th day of September, 2018.
The Issue The issue to be resolved is whether Petitioner received more than one increase in pay in any twelve-month period for the category of added duties and responsibilities, Rule 60K-2.006, Florida Administrative Code.
Findings Of Fact Stephen C. Metzler is an Environmental Specialist II in a leadworker position with the Department. Stephen C. Metzler received an Increase to Base Rate of Pay for added duties in the amount of $69.39, on April 7, 1998. Thereafter, Robert Merritt was promoted and there was no one to supervise the employees that he had previously supervised. He asked Petitioner to continue to perform the duties he had been performing, and assume the supervisory duties that Merritt had previously performed. Merritt advised Petitioner that he would be given additional compensation for performing these duties. Petitioner assumed and performed these added supervisory duties, and Merritt administratively initiated the pay increase. Subsequently, the paperwork was prepared by one of Respondent's clerical personnel, reviewed by the personnel officer, and signed by Petitioner's superiors. Petitioner did not see this paperwork at any time prior to its submission and had no part in its preparation. Both of Petitioner's supervisors who had signed and approved the pay-raise testified. They were aware that Petitioner was performing supervisory, leadworker duties and it was their intent to increase his compensation for performing those duties. Metzler received an increase to his base rate of pay for added duties in the amount of $75.86, on October 2, 1998. The Escambia County Health Department was not aware of the rule of prohibiting more than one pay increase in twelve consecutive months for the same category. The Department of Management Services audited the payroll of the Department of Health and found several deficiencies including overpayment to Metzler. The Personnel Action Request Form dated April 7, 1999, indicated that the pay increase being approved was to Petitioner's base rate of pay for the performance of added duties. Under the section of the form relating to "Salary," there is no selection under "Salary Additive." The Personnel Action Request Form dated October 2, 1999, indicated that the pay increase being approved was to Petitioner's base rate of pay for the performance of added duties. However, under the section of the form relating to "Salary," salary additive, the block "leadworker" was checked. It was testimony of the personnel officer that, had they known of the Rule restricting two pay increases within twelve consecutive months, they would have checked the block under increase in base rate of pay, Internal Pay Relationships. That, together with the selection of "Leadworker" under "Salary Additive," would have been administratively correct. Both payroll request forms authorize the increase of pay by placing an "X" in the box "added duties." Personnel Action Request one authorized a raise on April 7, 1999, and Personnel Action Request two authorized a raise on October 2, 1999, which is within twelve months of the first raise. McCulough calculated the $1,010.80 overpayment by determining the increases paid prior to the expiration of the twelve-month period of the preceding raise for the same category, added duties and responsibilities. McCullough calculated the amount of overpayment and drafted a letter for the Director of the Health Department's signature. McCullough drafted the letter seeking reimbursement of the $1,010.80, because of the audit exception and the demand of the Department of Management Services to correct the administrative error that had been made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent correct its paperwork and not attempt to collect the monies involved. DONE AND ENTERED this 26th day of June, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 26th day of June, 2000. COPIES FURNISHED: Stephen C. Metzler 4048 Charles Circle Pace, Florida 32571 Rodney M. Johnson, Esquire Department of Health 1295 West Fairfield Drive Pensacola, Florida 32501 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
Findings Of Fact The Respondent is a Public Employer within the meaning of Florida Statutes Section 447.203(2). Lloyd A. Perry was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3). Dana E. Pratt was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3). Prior to February 17, 1976, Lloyd A. Perry was employed by the Citrus County Road Department for a period of over four years. Immediately prior to the time that his employment was terminated, Perry was a roller operator. Except for rare occasions when he performed work as a flagman, or other work in conjunction with his roller work, Perry operated a tandem road roller. For the several months prior to February, 1976, Perry had continuously operated the same roller machine. Prior to February, 1976, none of Perry's supervisors informed him that his work was unsatisfactory, reprimanded him for performing work in an unsatisfactory manner, or indicated to him in any way that his job was in jeopardy for unsatisfactory performance of his duties. Dana E. Pratt had been employed by the Citrus County Road Department for approximately five years prior to February, 1976. For four years prior to that date he had been a motor grader operator. Pratt had annually received formal evaluations and his evaluations had always been very good. Prior to February, 1976, Pratt had never been criticized for below average or unsatisfactory work. He had never received any written reprimand for unsatisfactory performance on the job. From approximately December, 1973 until February, 1976, Perry had operated the newest grader machine in use by the Citrus County Road Department. No one else had operated the machine since it was acquired by the Citrus County Road Department. During February, 1976, Thomas Hutchinson was the Citrus County Road Superintendent. William Hitt was thee Assistant Road Superintendent. Hutchinson and Hitt served under the direction of the Citrus County Board of County Commissioners. Perry, Pratt, and numerous other employees of the Citrus County Road Department had, prior to February, 1976, become dissatisfied with conditions in the Road Department, primarily the manner of direction given the department by Hutchinson and Hitt. On Sunday, February 8, 1976, Perry drafted a petition specifying numerous grievances against Hutchinson and Hitt. It was his intention to secure the signatures of employees of the Road Department on the petition, and to present it to the Board of County Commissioners. Perry sought the assistance of County Commissioner DeBusk in drafting the petition. DeBusk offered several suggestions and his daughter typed the petition for Perry. Perry secured six or seven signatures on that Sunday. He was the first person to sign the petition, and Dana Pratt was the third. On Monday, February 9, Pratt informed his office that he had business to attend to and would not be at work that day. He did not claim sick leave for the time he missed. Prior to work and during the lunch hour he called as many employees of the Road Department as he could. After working hours he waited at a business establishment called the "Country Store" which was located in close proximity to the place where Road Department employees checked out of work. Forty-six employees of the Road Department signed the petition. Dana Pratt assisted in soliciting people to sign the petition. There was no evidence offered at the hearing from which it could be determined that those persons signing the petition did so other than freely and voluntarily. On Tuesday, February 10, 1976, Perry called his supervisor, Mr. Hutchinson, and told him that he had business to attend to. Hutchinson asked him if he was going to solicit more signatures. Perry told him that he was not. The Board of County Commissioners was meeting on that date, and Perry presented the petition to the Board. Members of the Board discussed the petition at length during the meeting. One commissioner asked Perry if he was big enough to go back to work and forget about the matter. Perry said that he was. On February 11, 1976 Perry returned to work at the regular time. Rather than being assigned to his regular duty as a roller operator, he was assigned to flag traffic for a grader operator. He continued in that capacity until Tuesday, February 17. On that date, at approximately 11:00 or 11:30 A.M. Tom Morton, the grader foreman, informed Perry that his employment was terminated as of 1:00 P.M. on that date. Both Morton and William Hitt told Perry that they did not know why he was fired. Dana Pratt attended the County Commission meeting on February 10. He was asked about whether he threatened a Road Department employee named Langley with respect to signing the petition. Pratt told the County Commission that he did not threaten Langley, and no evidence was offered at the hearing to establish that he did. On February 12, 1976, Pratt used the new grader machine that he had been using for some time prior thereto. At the end of that day his supervisors informed him that he would be using the oldest machine in the Department thereafter. He began using it on February 13. It took some time to get it started on that date. It also took some time to get it started on Monday, February 16. This was an old machine, and had been difficult to start for some years prior to the time that it was assigned to Pratt. At 12:30 on February 17, 1976, Tom Morton informed Pratt that his employment was terminated as of 1:00 P.M. on that date. Pratt was never given any reasons for his termination. On February 17, 1976, the Citrus County Board of County Commissioners acted to terminate the employment of Perry and Pratt. These actions were taken upon the recommendation of Mr. Hutchinson. Ostensibly the reason for Pratt's termination was that he had marked out on sick leave on a day when he was not sick. Ostensibly the reason for Perry's termination was that he had been missing from the job for approximately an hour. The evidence would not support a finding that Perry and Pratt were fired for these reasons. These reasons offered by Hutchinson, and followed by the Board of County Commissioners, were used as a ruse. On February 18, 1976, the day after Pratt and Perry were fired, Hutchinson called a meeting of all employees of the Road Department. Hutchinson told the employees that he had nothing to do with the termination, but he also told them that he would tolerate no more petitions and that if anyone did not like working conditions at the Road Department they could leave. He said that he had four County Commissioners in his pocket, and he reminded the employees that unemployment in Citrus County was high. He told the employees that he would take care of any petitions they distributed. During the week the petition was distributed, Hutchinson told one employee of the Road Department, James Johnson, that Johnson could be put in jail for signing the petition. During that same week he told his assistant superintendent, William Hitt, that all of the men who signed the petition had to go. After Perry and Pratt were fired, Hutchinson told Hitt that he got two, and he would get the rest. The basis for Hutchinson's recommendation to the Board of County Commissioners that Perry and Pratt be terminated was the fact that they participated in the distribution of the petition, and presenting it to the Board of County Commissioners. There was no evidence offerred at the hearing to indicate that any members of the Board of County Commissioners knew Hutchinson was presenting false reasons for the terminations; however, they did act to adopt the recommendation. The Board of County Commissioners did know that Pratt and Perry were among the leaders in distributing the petition highly critical of Hutchinson's work, and was clearly on notice that Hutchinson may have ulterior motives in recommending their dismissal.
